howard knopf u of t copyright conference final pp oct 2 2015.pdf
TRANSCRIPT
CANADArsquoS COPYRIGHT BOARD PROUD LEGACY PROBLEMS POTENTIAL amp
POSSIBILITIES
University of Toronto
October 2 2015
COPYRIGHT IN CANADA CONFERENCE 2015
HOWARD KNOPF
Counsel
MACERA amp JARZYNA LLP
OTTAWA CANADA
(views are personal and not necessarily those of my firm or clients)
What I will cover
This is NOT a ldquoyear in reviewrdquo I will deal with in my ~ 17 minutes with bull A brief history of the Board bull How the Board works (and doesnrsquot work) bull Copyright Board at the Cross Roads ndash Is the System
Sustainable bull The De Beer Report bull Actual even if anecdotal as opposed to statistical facts
about the Board bull Whether Copyright Board tariffs are ldquomandatoryrdquo bull The York University litigation bull Where do we go from here
Copyright Board bull Opening thoughts about baseball statistics Yogi Berra and predictions bull ldquoWhen You Come to a Fork in the Road Take Itrdquo bull The Parker Report of 1935 re ldquosound picturesrdquo and ldquobroadcastingrdquo bull In 1936 Copyright Appeal Board created bull Plus ccedila changehellip bull Canada once a world leader in collective oversight bull Ill-fated International Association of Copyright Administrative Institutions (IACAI)
initiative from ~2005 bull Today we have a highly professional courteous and committed Board with
considerable continuity and corporate memory bull However today it routinely takes 4 years to get to a hearing and 2+ years to a
decision which may be too often prone to error bull Decisions are almost always significantly retroactive despite warning of Supreme
Court of Canada in 1954 Maple Leaf decision bull Canada has largest tribunal of its kind by far anywhere in world bull Cases often cost gt $1 million to launch and even defend and last for 6+ years bull Cost to taxpayers is ~ $1 million per significant decision bull Why is this so and are parties getting their moneyrsquos worth bull Problems overall are
ndash Delay ndash Expense ndash Retroactivity
bull Will more resources for the Board solve these problems
Even the Collectives are Complaining bull Recent tariffs that wonrsquot pay for themselves
ndash Access Copyright Provincial Government Tariff (worth about $370000 over ten years)
ndash ReSound Pandora Tariff ($500000 per annum revenue but if and only if Pandora launches in Canada ndash which it has not done)
ndash Canadians still canrsquot get there from here re Pandora We are deeply deeply sorry to say that due to licensing constraints we can no longer allow access to Pandora for listeners located outside of the US Australia and New Zealand wwwPandoracom
ndash Reaction Judicial review ndash and why not
ndash But certain collectives are going straight to the Court of Public Opinion or worse
Collective Response bull Access Copyright spending its dwindling funds on an
unconvincing PwC report
bull Very inappropriate lobbyingastroturf campaign by MusicCanadacom ldquoSend an email to the Chair of the Copyright Board of Canada re Tariff 8rdquo
From MusicCanadacom Send an email to newly-appointed Copyright Board chair Justice Robert A Blair urging him to facilitate the prosperity of Canadian cultural businesses rather than impede it by recognizing the value of the Canadian music industry for all Canadians To Justice Robert A Blair Chair of the Copyright Board of Canada Congratulations on your recent appointment as the chair of the Copyright Board of Canada Under the previous leadership of the Copyright Board one year ago the Tariff 8 decision to provide creators with rates 90 lower than those they had negotiated commercially [sic] This decision discards years of agreements freely negotiated between digital music service providers and the music industry and sends a message to the world that it does not value music as a profession This is inconsistent with Canadian values These rates were unprecedented globally ndash they are one [sic] of the worldrsquos worst royalty rates for non-interactive and semi-interactive music streaming One year later [sic] Tariff 8 decision remains a serious setback for the music community in Canada for artists and the music companies who invest in their careers This decision has created a regulatory precedent that ignores the reality of the marketplace and will continue to harm the business climate in this country and create a [sic] market uncertainty Today Canadian recorded music digital revenues and physical revenues combined only represent half of revenues fifteen years ago I urge you in your new position to make decisions that recognize the value of the Canadian music industry for all Canadians and to create tariffs that pay creators fairly Canadian creators should not be paid less than their contemporaries around the world As you begin your mandate please consider how the Copyright Board can facilitate the prosperity of Canadian cultural businesses rather than impede it (emphasis added)
Whassup on current high profile JRs (ie Appeals)
bull The Access Copyright Judicial Review re Provincial Tariff
bull The ReSound Judicial Review re Tariff 8 (the ldquoPandorardquo tariff
Tribunal Applicable Regulations or Rules re Procedure
Mandate of Significant amp Substantive Decisions per year
of Members of Staff FTE
Budget (ie net cost of operations)
Copyright BoardNo procedural regulations in place other than Boardrsquos informal and very general ldquoDirective on Procedurerdquo
Setting Copyright Tariffs and Levies pursuant to Copyright Act app 3 per year (S 77 ldquoUnlocatablerdquo decisions cannot be considered as ldquosignificantrdquo and have never involved an actual hearing)
Up to 5 full time Currently 1 full time + 1 part time Chair (currently vacant)who must be a sitting or retired judge
16 3514185 (2013-2014)
Competition Tribunal Competition Tribunal Rules (SOR2008-141)
Dealing with wide range of applications arising from Competition Act app 10 per year since 2000
Up to six judicial members from Federal Court and not more than eight lay members
9 3184043 (2014-2015)
CRTCCanadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR2010-277)
Wide range of licensing and regulatory oversight in broadcasting and telecommunication internet ant-spam etc app 600-700 decisions a year ndash many minor but many very important eg 2014
Chair two Vice-Chairs and up to 10 national and Regional Commissioners
437 17586000 (2013-2014) (Expenses of 65030 offset by revenues of 47444)
Canadian International Trade Tribunal See Act and Regulations here
ldquointernational trade cases procurement cases customs and excise tax appeals and government-mandated inquiries within the Tribunalrsquos jurisdictionrdquo129 decisions in 2013-2014
Up to seven full time members including a chairperson
62 13581000
Canadian Industrial Relations TribunalCanada Industrial Relations Board Regulations 2012 (SOR2001-520)
Handles more than 600 labour related matters under Federal jurisdiction including Status of the Artist Act Processing times are published here
Chair two Vice-Chairs up to six full time members and additional part time members
97 17567000
Trademarks Opposition Board See Practice in Trademark Opposition Proceedings
Rules on oppositions to registration and s 45 expungement Many of these rulings involve hearings 741 decisions rendered in 2011-2-12
App 10 members and 12 staff These are all public service positions
12 NA
Supreme Court of CanadaRules of the Supreme Court of Canada (SOR2002-156)
Highest Court of Canada Process more than 500 leave applications and issues approximately 80 decisions per year on average about 4 months after hearing and 15 months total duration from application for leave to appeal
Nine full time justices 215 42011659 (net cost of operations est for 2013-2014)
Prof De Beer Distribution of certified tariffs
applicable for the years 1999-2013 (wwwJeremyDeBeerca)
Prof De Beer According to my data 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013 There are 209 pending tariffs that were proposed for that period but have not yet been certified The certified tariffs took an average of 35 years to certify after filing The average pending tariff has been outstanding for 53 years since filing as of March 31 2015 On average tariffs are certified 22 years after the beginning of the year in which they become applicable which is in effect a period of retroactivity The standard deviation in the time from proposal filing to tariff certification is 2 years A hearing was held in 28 of tariff proceedings The average time from proposal filing to a hearing in those proceedings was just over 3 years The average time from a hearing to tariff certification was almost 13 years (emphasis added)
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
What I will cover
This is NOT a ldquoyear in reviewrdquo I will deal with in my ~ 17 minutes with bull A brief history of the Board bull How the Board works (and doesnrsquot work) bull Copyright Board at the Cross Roads ndash Is the System
Sustainable bull The De Beer Report bull Actual even if anecdotal as opposed to statistical facts
about the Board bull Whether Copyright Board tariffs are ldquomandatoryrdquo bull The York University litigation bull Where do we go from here
Copyright Board bull Opening thoughts about baseball statistics Yogi Berra and predictions bull ldquoWhen You Come to a Fork in the Road Take Itrdquo bull The Parker Report of 1935 re ldquosound picturesrdquo and ldquobroadcastingrdquo bull In 1936 Copyright Appeal Board created bull Plus ccedila changehellip bull Canada once a world leader in collective oversight bull Ill-fated International Association of Copyright Administrative Institutions (IACAI)
initiative from ~2005 bull Today we have a highly professional courteous and committed Board with
considerable continuity and corporate memory bull However today it routinely takes 4 years to get to a hearing and 2+ years to a
decision which may be too often prone to error bull Decisions are almost always significantly retroactive despite warning of Supreme
Court of Canada in 1954 Maple Leaf decision bull Canada has largest tribunal of its kind by far anywhere in world bull Cases often cost gt $1 million to launch and even defend and last for 6+ years bull Cost to taxpayers is ~ $1 million per significant decision bull Why is this so and are parties getting their moneyrsquos worth bull Problems overall are
ndash Delay ndash Expense ndash Retroactivity
bull Will more resources for the Board solve these problems
Even the Collectives are Complaining bull Recent tariffs that wonrsquot pay for themselves
ndash Access Copyright Provincial Government Tariff (worth about $370000 over ten years)
ndash ReSound Pandora Tariff ($500000 per annum revenue but if and only if Pandora launches in Canada ndash which it has not done)
ndash Canadians still canrsquot get there from here re Pandora We are deeply deeply sorry to say that due to licensing constraints we can no longer allow access to Pandora for listeners located outside of the US Australia and New Zealand wwwPandoracom
ndash Reaction Judicial review ndash and why not
ndash But certain collectives are going straight to the Court of Public Opinion or worse
Collective Response bull Access Copyright spending its dwindling funds on an
unconvincing PwC report
bull Very inappropriate lobbyingastroturf campaign by MusicCanadacom ldquoSend an email to the Chair of the Copyright Board of Canada re Tariff 8rdquo
From MusicCanadacom Send an email to newly-appointed Copyright Board chair Justice Robert A Blair urging him to facilitate the prosperity of Canadian cultural businesses rather than impede it by recognizing the value of the Canadian music industry for all Canadians To Justice Robert A Blair Chair of the Copyright Board of Canada Congratulations on your recent appointment as the chair of the Copyright Board of Canada Under the previous leadership of the Copyright Board one year ago the Tariff 8 decision to provide creators with rates 90 lower than those they had negotiated commercially [sic] This decision discards years of agreements freely negotiated between digital music service providers and the music industry and sends a message to the world that it does not value music as a profession This is inconsistent with Canadian values These rates were unprecedented globally ndash they are one [sic] of the worldrsquos worst royalty rates for non-interactive and semi-interactive music streaming One year later [sic] Tariff 8 decision remains a serious setback for the music community in Canada for artists and the music companies who invest in their careers This decision has created a regulatory precedent that ignores the reality of the marketplace and will continue to harm the business climate in this country and create a [sic] market uncertainty Today Canadian recorded music digital revenues and physical revenues combined only represent half of revenues fifteen years ago I urge you in your new position to make decisions that recognize the value of the Canadian music industry for all Canadians and to create tariffs that pay creators fairly Canadian creators should not be paid less than their contemporaries around the world As you begin your mandate please consider how the Copyright Board can facilitate the prosperity of Canadian cultural businesses rather than impede it (emphasis added)
Whassup on current high profile JRs (ie Appeals)
bull The Access Copyright Judicial Review re Provincial Tariff
bull The ReSound Judicial Review re Tariff 8 (the ldquoPandorardquo tariff
Tribunal Applicable Regulations or Rules re Procedure
Mandate of Significant amp Substantive Decisions per year
of Members of Staff FTE
Budget (ie net cost of operations)
Copyright BoardNo procedural regulations in place other than Boardrsquos informal and very general ldquoDirective on Procedurerdquo
Setting Copyright Tariffs and Levies pursuant to Copyright Act app 3 per year (S 77 ldquoUnlocatablerdquo decisions cannot be considered as ldquosignificantrdquo and have never involved an actual hearing)
Up to 5 full time Currently 1 full time + 1 part time Chair (currently vacant)who must be a sitting or retired judge
16 3514185 (2013-2014)
Competition Tribunal Competition Tribunal Rules (SOR2008-141)
Dealing with wide range of applications arising from Competition Act app 10 per year since 2000
Up to six judicial members from Federal Court and not more than eight lay members
9 3184043 (2014-2015)
CRTCCanadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR2010-277)
Wide range of licensing and regulatory oversight in broadcasting and telecommunication internet ant-spam etc app 600-700 decisions a year ndash many minor but many very important eg 2014
Chair two Vice-Chairs and up to 10 national and Regional Commissioners
437 17586000 (2013-2014) (Expenses of 65030 offset by revenues of 47444)
Canadian International Trade Tribunal See Act and Regulations here
ldquointernational trade cases procurement cases customs and excise tax appeals and government-mandated inquiries within the Tribunalrsquos jurisdictionrdquo129 decisions in 2013-2014
Up to seven full time members including a chairperson
62 13581000
Canadian Industrial Relations TribunalCanada Industrial Relations Board Regulations 2012 (SOR2001-520)
Handles more than 600 labour related matters under Federal jurisdiction including Status of the Artist Act Processing times are published here
Chair two Vice-Chairs up to six full time members and additional part time members
97 17567000
Trademarks Opposition Board See Practice in Trademark Opposition Proceedings
Rules on oppositions to registration and s 45 expungement Many of these rulings involve hearings 741 decisions rendered in 2011-2-12
App 10 members and 12 staff These are all public service positions
12 NA
Supreme Court of CanadaRules of the Supreme Court of Canada (SOR2002-156)
Highest Court of Canada Process more than 500 leave applications and issues approximately 80 decisions per year on average about 4 months after hearing and 15 months total duration from application for leave to appeal
Nine full time justices 215 42011659 (net cost of operations est for 2013-2014)
Prof De Beer Distribution of certified tariffs
applicable for the years 1999-2013 (wwwJeremyDeBeerca)
Prof De Beer According to my data 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013 There are 209 pending tariffs that were proposed for that period but have not yet been certified The certified tariffs took an average of 35 years to certify after filing The average pending tariff has been outstanding for 53 years since filing as of March 31 2015 On average tariffs are certified 22 years after the beginning of the year in which they become applicable which is in effect a period of retroactivity The standard deviation in the time from proposal filing to tariff certification is 2 years A hearing was held in 28 of tariff proceedings The average time from proposal filing to a hearing in those proceedings was just over 3 years The average time from a hearing to tariff certification was almost 13 years (emphasis added)
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Copyright Board bull Opening thoughts about baseball statistics Yogi Berra and predictions bull ldquoWhen You Come to a Fork in the Road Take Itrdquo bull The Parker Report of 1935 re ldquosound picturesrdquo and ldquobroadcastingrdquo bull In 1936 Copyright Appeal Board created bull Plus ccedila changehellip bull Canada once a world leader in collective oversight bull Ill-fated International Association of Copyright Administrative Institutions (IACAI)
initiative from ~2005 bull Today we have a highly professional courteous and committed Board with
considerable continuity and corporate memory bull However today it routinely takes 4 years to get to a hearing and 2+ years to a
decision which may be too often prone to error bull Decisions are almost always significantly retroactive despite warning of Supreme
Court of Canada in 1954 Maple Leaf decision bull Canada has largest tribunal of its kind by far anywhere in world bull Cases often cost gt $1 million to launch and even defend and last for 6+ years bull Cost to taxpayers is ~ $1 million per significant decision bull Why is this so and are parties getting their moneyrsquos worth bull Problems overall are
ndash Delay ndash Expense ndash Retroactivity
bull Will more resources for the Board solve these problems
Even the Collectives are Complaining bull Recent tariffs that wonrsquot pay for themselves
ndash Access Copyright Provincial Government Tariff (worth about $370000 over ten years)
ndash ReSound Pandora Tariff ($500000 per annum revenue but if and only if Pandora launches in Canada ndash which it has not done)
ndash Canadians still canrsquot get there from here re Pandora We are deeply deeply sorry to say that due to licensing constraints we can no longer allow access to Pandora for listeners located outside of the US Australia and New Zealand wwwPandoracom
ndash Reaction Judicial review ndash and why not
ndash But certain collectives are going straight to the Court of Public Opinion or worse
Collective Response bull Access Copyright spending its dwindling funds on an
unconvincing PwC report
bull Very inappropriate lobbyingastroturf campaign by MusicCanadacom ldquoSend an email to the Chair of the Copyright Board of Canada re Tariff 8rdquo
From MusicCanadacom Send an email to newly-appointed Copyright Board chair Justice Robert A Blair urging him to facilitate the prosperity of Canadian cultural businesses rather than impede it by recognizing the value of the Canadian music industry for all Canadians To Justice Robert A Blair Chair of the Copyright Board of Canada Congratulations on your recent appointment as the chair of the Copyright Board of Canada Under the previous leadership of the Copyright Board one year ago the Tariff 8 decision to provide creators with rates 90 lower than those they had negotiated commercially [sic] This decision discards years of agreements freely negotiated between digital music service providers and the music industry and sends a message to the world that it does not value music as a profession This is inconsistent with Canadian values These rates were unprecedented globally ndash they are one [sic] of the worldrsquos worst royalty rates for non-interactive and semi-interactive music streaming One year later [sic] Tariff 8 decision remains a serious setback for the music community in Canada for artists and the music companies who invest in their careers This decision has created a regulatory precedent that ignores the reality of the marketplace and will continue to harm the business climate in this country and create a [sic] market uncertainty Today Canadian recorded music digital revenues and physical revenues combined only represent half of revenues fifteen years ago I urge you in your new position to make decisions that recognize the value of the Canadian music industry for all Canadians and to create tariffs that pay creators fairly Canadian creators should not be paid less than their contemporaries around the world As you begin your mandate please consider how the Copyright Board can facilitate the prosperity of Canadian cultural businesses rather than impede it (emphasis added)
Whassup on current high profile JRs (ie Appeals)
bull The Access Copyright Judicial Review re Provincial Tariff
bull The ReSound Judicial Review re Tariff 8 (the ldquoPandorardquo tariff
Tribunal Applicable Regulations or Rules re Procedure
Mandate of Significant amp Substantive Decisions per year
of Members of Staff FTE
Budget (ie net cost of operations)
Copyright BoardNo procedural regulations in place other than Boardrsquos informal and very general ldquoDirective on Procedurerdquo
Setting Copyright Tariffs and Levies pursuant to Copyright Act app 3 per year (S 77 ldquoUnlocatablerdquo decisions cannot be considered as ldquosignificantrdquo and have never involved an actual hearing)
Up to 5 full time Currently 1 full time + 1 part time Chair (currently vacant)who must be a sitting or retired judge
16 3514185 (2013-2014)
Competition Tribunal Competition Tribunal Rules (SOR2008-141)
Dealing with wide range of applications arising from Competition Act app 10 per year since 2000
Up to six judicial members from Federal Court and not more than eight lay members
9 3184043 (2014-2015)
CRTCCanadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR2010-277)
Wide range of licensing and regulatory oversight in broadcasting and telecommunication internet ant-spam etc app 600-700 decisions a year ndash many minor but many very important eg 2014
Chair two Vice-Chairs and up to 10 national and Regional Commissioners
437 17586000 (2013-2014) (Expenses of 65030 offset by revenues of 47444)
Canadian International Trade Tribunal See Act and Regulations here
ldquointernational trade cases procurement cases customs and excise tax appeals and government-mandated inquiries within the Tribunalrsquos jurisdictionrdquo129 decisions in 2013-2014
Up to seven full time members including a chairperson
62 13581000
Canadian Industrial Relations TribunalCanada Industrial Relations Board Regulations 2012 (SOR2001-520)
Handles more than 600 labour related matters under Federal jurisdiction including Status of the Artist Act Processing times are published here
Chair two Vice-Chairs up to six full time members and additional part time members
97 17567000
Trademarks Opposition Board See Practice in Trademark Opposition Proceedings
Rules on oppositions to registration and s 45 expungement Many of these rulings involve hearings 741 decisions rendered in 2011-2-12
App 10 members and 12 staff These are all public service positions
12 NA
Supreme Court of CanadaRules of the Supreme Court of Canada (SOR2002-156)
Highest Court of Canada Process more than 500 leave applications and issues approximately 80 decisions per year on average about 4 months after hearing and 15 months total duration from application for leave to appeal
Nine full time justices 215 42011659 (net cost of operations est for 2013-2014)
Prof De Beer Distribution of certified tariffs
applicable for the years 1999-2013 (wwwJeremyDeBeerca)
Prof De Beer According to my data 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013 There are 209 pending tariffs that were proposed for that period but have not yet been certified The certified tariffs took an average of 35 years to certify after filing The average pending tariff has been outstanding for 53 years since filing as of March 31 2015 On average tariffs are certified 22 years after the beginning of the year in which they become applicable which is in effect a period of retroactivity The standard deviation in the time from proposal filing to tariff certification is 2 years A hearing was held in 28 of tariff proceedings The average time from proposal filing to a hearing in those proceedings was just over 3 years The average time from a hearing to tariff certification was almost 13 years (emphasis added)
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Even the Collectives are Complaining bull Recent tariffs that wonrsquot pay for themselves
ndash Access Copyright Provincial Government Tariff (worth about $370000 over ten years)
ndash ReSound Pandora Tariff ($500000 per annum revenue but if and only if Pandora launches in Canada ndash which it has not done)
ndash Canadians still canrsquot get there from here re Pandora We are deeply deeply sorry to say that due to licensing constraints we can no longer allow access to Pandora for listeners located outside of the US Australia and New Zealand wwwPandoracom
ndash Reaction Judicial review ndash and why not
ndash But certain collectives are going straight to the Court of Public Opinion or worse
Collective Response bull Access Copyright spending its dwindling funds on an
unconvincing PwC report
bull Very inappropriate lobbyingastroturf campaign by MusicCanadacom ldquoSend an email to the Chair of the Copyright Board of Canada re Tariff 8rdquo
From MusicCanadacom Send an email to newly-appointed Copyright Board chair Justice Robert A Blair urging him to facilitate the prosperity of Canadian cultural businesses rather than impede it by recognizing the value of the Canadian music industry for all Canadians To Justice Robert A Blair Chair of the Copyright Board of Canada Congratulations on your recent appointment as the chair of the Copyright Board of Canada Under the previous leadership of the Copyright Board one year ago the Tariff 8 decision to provide creators with rates 90 lower than those they had negotiated commercially [sic] This decision discards years of agreements freely negotiated between digital music service providers and the music industry and sends a message to the world that it does not value music as a profession This is inconsistent with Canadian values These rates were unprecedented globally ndash they are one [sic] of the worldrsquos worst royalty rates for non-interactive and semi-interactive music streaming One year later [sic] Tariff 8 decision remains a serious setback for the music community in Canada for artists and the music companies who invest in their careers This decision has created a regulatory precedent that ignores the reality of the marketplace and will continue to harm the business climate in this country and create a [sic] market uncertainty Today Canadian recorded music digital revenues and physical revenues combined only represent half of revenues fifteen years ago I urge you in your new position to make decisions that recognize the value of the Canadian music industry for all Canadians and to create tariffs that pay creators fairly Canadian creators should not be paid less than their contemporaries around the world As you begin your mandate please consider how the Copyright Board can facilitate the prosperity of Canadian cultural businesses rather than impede it (emphasis added)
Whassup on current high profile JRs (ie Appeals)
bull The Access Copyright Judicial Review re Provincial Tariff
bull The ReSound Judicial Review re Tariff 8 (the ldquoPandorardquo tariff
Tribunal Applicable Regulations or Rules re Procedure
Mandate of Significant amp Substantive Decisions per year
of Members of Staff FTE
Budget (ie net cost of operations)
Copyright BoardNo procedural regulations in place other than Boardrsquos informal and very general ldquoDirective on Procedurerdquo
Setting Copyright Tariffs and Levies pursuant to Copyright Act app 3 per year (S 77 ldquoUnlocatablerdquo decisions cannot be considered as ldquosignificantrdquo and have never involved an actual hearing)
Up to 5 full time Currently 1 full time + 1 part time Chair (currently vacant)who must be a sitting or retired judge
16 3514185 (2013-2014)
Competition Tribunal Competition Tribunal Rules (SOR2008-141)
Dealing with wide range of applications arising from Competition Act app 10 per year since 2000
Up to six judicial members from Federal Court and not more than eight lay members
9 3184043 (2014-2015)
CRTCCanadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR2010-277)
Wide range of licensing and regulatory oversight in broadcasting and telecommunication internet ant-spam etc app 600-700 decisions a year ndash many minor but many very important eg 2014
Chair two Vice-Chairs and up to 10 national and Regional Commissioners
437 17586000 (2013-2014) (Expenses of 65030 offset by revenues of 47444)
Canadian International Trade Tribunal See Act and Regulations here
ldquointernational trade cases procurement cases customs and excise tax appeals and government-mandated inquiries within the Tribunalrsquos jurisdictionrdquo129 decisions in 2013-2014
Up to seven full time members including a chairperson
62 13581000
Canadian Industrial Relations TribunalCanada Industrial Relations Board Regulations 2012 (SOR2001-520)
Handles more than 600 labour related matters under Federal jurisdiction including Status of the Artist Act Processing times are published here
Chair two Vice-Chairs up to six full time members and additional part time members
97 17567000
Trademarks Opposition Board See Practice in Trademark Opposition Proceedings
Rules on oppositions to registration and s 45 expungement Many of these rulings involve hearings 741 decisions rendered in 2011-2-12
App 10 members and 12 staff These are all public service positions
12 NA
Supreme Court of CanadaRules of the Supreme Court of Canada (SOR2002-156)
Highest Court of Canada Process more than 500 leave applications and issues approximately 80 decisions per year on average about 4 months after hearing and 15 months total duration from application for leave to appeal
Nine full time justices 215 42011659 (net cost of operations est for 2013-2014)
Prof De Beer Distribution of certified tariffs
applicable for the years 1999-2013 (wwwJeremyDeBeerca)
Prof De Beer According to my data 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013 There are 209 pending tariffs that were proposed for that period but have not yet been certified The certified tariffs took an average of 35 years to certify after filing The average pending tariff has been outstanding for 53 years since filing as of March 31 2015 On average tariffs are certified 22 years after the beginning of the year in which they become applicable which is in effect a period of retroactivity The standard deviation in the time from proposal filing to tariff certification is 2 years A hearing was held in 28 of tariff proceedings The average time from proposal filing to a hearing in those proceedings was just over 3 years The average time from a hearing to tariff certification was almost 13 years (emphasis added)
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Collective Response bull Access Copyright spending its dwindling funds on an
unconvincing PwC report
bull Very inappropriate lobbyingastroturf campaign by MusicCanadacom ldquoSend an email to the Chair of the Copyright Board of Canada re Tariff 8rdquo
From MusicCanadacom Send an email to newly-appointed Copyright Board chair Justice Robert A Blair urging him to facilitate the prosperity of Canadian cultural businesses rather than impede it by recognizing the value of the Canadian music industry for all Canadians To Justice Robert A Blair Chair of the Copyright Board of Canada Congratulations on your recent appointment as the chair of the Copyright Board of Canada Under the previous leadership of the Copyright Board one year ago the Tariff 8 decision to provide creators with rates 90 lower than those they had negotiated commercially [sic] This decision discards years of agreements freely negotiated between digital music service providers and the music industry and sends a message to the world that it does not value music as a profession This is inconsistent with Canadian values These rates were unprecedented globally ndash they are one [sic] of the worldrsquos worst royalty rates for non-interactive and semi-interactive music streaming One year later [sic] Tariff 8 decision remains a serious setback for the music community in Canada for artists and the music companies who invest in their careers This decision has created a regulatory precedent that ignores the reality of the marketplace and will continue to harm the business climate in this country and create a [sic] market uncertainty Today Canadian recorded music digital revenues and physical revenues combined only represent half of revenues fifteen years ago I urge you in your new position to make decisions that recognize the value of the Canadian music industry for all Canadians and to create tariffs that pay creators fairly Canadian creators should not be paid less than their contemporaries around the world As you begin your mandate please consider how the Copyright Board can facilitate the prosperity of Canadian cultural businesses rather than impede it (emphasis added)
Whassup on current high profile JRs (ie Appeals)
bull The Access Copyright Judicial Review re Provincial Tariff
bull The ReSound Judicial Review re Tariff 8 (the ldquoPandorardquo tariff
Tribunal Applicable Regulations or Rules re Procedure
Mandate of Significant amp Substantive Decisions per year
of Members of Staff FTE
Budget (ie net cost of operations)
Copyright BoardNo procedural regulations in place other than Boardrsquos informal and very general ldquoDirective on Procedurerdquo
Setting Copyright Tariffs and Levies pursuant to Copyright Act app 3 per year (S 77 ldquoUnlocatablerdquo decisions cannot be considered as ldquosignificantrdquo and have never involved an actual hearing)
Up to 5 full time Currently 1 full time + 1 part time Chair (currently vacant)who must be a sitting or retired judge
16 3514185 (2013-2014)
Competition Tribunal Competition Tribunal Rules (SOR2008-141)
Dealing with wide range of applications arising from Competition Act app 10 per year since 2000
Up to six judicial members from Federal Court and not more than eight lay members
9 3184043 (2014-2015)
CRTCCanadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR2010-277)
Wide range of licensing and regulatory oversight in broadcasting and telecommunication internet ant-spam etc app 600-700 decisions a year ndash many minor but many very important eg 2014
Chair two Vice-Chairs and up to 10 national and Regional Commissioners
437 17586000 (2013-2014) (Expenses of 65030 offset by revenues of 47444)
Canadian International Trade Tribunal See Act and Regulations here
ldquointernational trade cases procurement cases customs and excise tax appeals and government-mandated inquiries within the Tribunalrsquos jurisdictionrdquo129 decisions in 2013-2014
Up to seven full time members including a chairperson
62 13581000
Canadian Industrial Relations TribunalCanada Industrial Relations Board Regulations 2012 (SOR2001-520)
Handles more than 600 labour related matters under Federal jurisdiction including Status of the Artist Act Processing times are published here
Chair two Vice-Chairs up to six full time members and additional part time members
97 17567000
Trademarks Opposition Board See Practice in Trademark Opposition Proceedings
Rules on oppositions to registration and s 45 expungement Many of these rulings involve hearings 741 decisions rendered in 2011-2-12
App 10 members and 12 staff These are all public service positions
12 NA
Supreme Court of CanadaRules of the Supreme Court of Canada (SOR2002-156)
Highest Court of Canada Process more than 500 leave applications and issues approximately 80 decisions per year on average about 4 months after hearing and 15 months total duration from application for leave to appeal
Nine full time justices 215 42011659 (net cost of operations est for 2013-2014)
Prof De Beer Distribution of certified tariffs
applicable for the years 1999-2013 (wwwJeremyDeBeerca)
Prof De Beer According to my data 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013 There are 209 pending tariffs that were proposed for that period but have not yet been certified The certified tariffs took an average of 35 years to certify after filing The average pending tariff has been outstanding for 53 years since filing as of March 31 2015 On average tariffs are certified 22 years after the beginning of the year in which they become applicable which is in effect a period of retroactivity The standard deviation in the time from proposal filing to tariff certification is 2 years A hearing was held in 28 of tariff proceedings The average time from proposal filing to a hearing in those proceedings was just over 3 years The average time from a hearing to tariff certification was almost 13 years (emphasis added)
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
From MusicCanadacom Send an email to newly-appointed Copyright Board chair Justice Robert A Blair urging him to facilitate the prosperity of Canadian cultural businesses rather than impede it by recognizing the value of the Canadian music industry for all Canadians To Justice Robert A Blair Chair of the Copyright Board of Canada Congratulations on your recent appointment as the chair of the Copyright Board of Canada Under the previous leadership of the Copyright Board one year ago the Tariff 8 decision to provide creators with rates 90 lower than those they had negotiated commercially [sic] This decision discards years of agreements freely negotiated between digital music service providers and the music industry and sends a message to the world that it does not value music as a profession This is inconsistent with Canadian values These rates were unprecedented globally ndash they are one [sic] of the worldrsquos worst royalty rates for non-interactive and semi-interactive music streaming One year later [sic] Tariff 8 decision remains a serious setback for the music community in Canada for artists and the music companies who invest in their careers This decision has created a regulatory precedent that ignores the reality of the marketplace and will continue to harm the business climate in this country and create a [sic] market uncertainty Today Canadian recorded music digital revenues and physical revenues combined only represent half of revenues fifteen years ago I urge you in your new position to make decisions that recognize the value of the Canadian music industry for all Canadians and to create tariffs that pay creators fairly Canadian creators should not be paid less than their contemporaries around the world As you begin your mandate please consider how the Copyright Board can facilitate the prosperity of Canadian cultural businesses rather than impede it (emphasis added)
Whassup on current high profile JRs (ie Appeals)
bull The Access Copyright Judicial Review re Provincial Tariff
bull The ReSound Judicial Review re Tariff 8 (the ldquoPandorardquo tariff
Tribunal Applicable Regulations or Rules re Procedure
Mandate of Significant amp Substantive Decisions per year
of Members of Staff FTE
Budget (ie net cost of operations)
Copyright BoardNo procedural regulations in place other than Boardrsquos informal and very general ldquoDirective on Procedurerdquo
Setting Copyright Tariffs and Levies pursuant to Copyright Act app 3 per year (S 77 ldquoUnlocatablerdquo decisions cannot be considered as ldquosignificantrdquo and have never involved an actual hearing)
Up to 5 full time Currently 1 full time + 1 part time Chair (currently vacant)who must be a sitting or retired judge
16 3514185 (2013-2014)
Competition Tribunal Competition Tribunal Rules (SOR2008-141)
Dealing with wide range of applications arising from Competition Act app 10 per year since 2000
Up to six judicial members from Federal Court and not more than eight lay members
9 3184043 (2014-2015)
CRTCCanadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR2010-277)
Wide range of licensing and regulatory oversight in broadcasting and telecommunication internet ant-spam etc app 600-700 decisions a year ndash many minor but many very important eg 2014
Chair two Vice-Chairs and up to 10 national and Regional Commissioners
437 17586000 (2013-2014) (Expenses of 65030 offset by revenues of 47444)
Canadian International Trade Tribunal See Act and Regulations here
ldquointernational trade cases procurement cases customs and excise tax appeals and government-mandated inquiries within the Tribunalrsquos jurisdictionrdquo129 decisions in 2013-2014
Up to seven full time members including a chairperson
62 13581000
Canadian Industrial Relations TribunalCanada Industrial Relations Board Regulations 2012 (SOR2001-520)
Handles more than 600 labour related matters under Federal jurisdiction including Status of the Artist Act Processing times are published here
Chair two Vice-Chairs up to six full time members and additional part time members
97 17567000
Trademarks Opposition Board See Practice in Trademark Opposition Proceedings
Rules on oppositions to registration and s 45 expungement Many of these rulings involve hearings 741 decisions rendered in 2011-2-12
App 10 members and 12 staff These are all public service positions
12 NA
Supreme Court of CanadaRules of the Supreme Court of Canada (SOR2002-156)
Highest Court of Canada Process more than 500 leave applications and issues approximately 80 decisions per year on average about 4 months after hearing and 15 months total duration from application for leave to appeal
Nine full time justices 215 42011659 (net cost of operations est for 2013-2014)
Prof De Beer Distribution of certified tariffs
applicable for the years 1999-2013 (wwwJeremyDeBeerca)
Prof De Beer According to my data 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013 There are 209 pending tariffs that were proposed for that period but have not yet been certified The certified tariffs took an average of 35 years to certify after filing The average pending tariff has been outstanding for 53 years since filing as of March 31 2015 On average tariffs are certified 22 years after the beginning of the year in which they become applicable which is in effect a period of retroactivity The standard deviation in the time from proposal filing to tariff certification is 2 years A hearing was held in 28 of tariff proceedings The average time from proposal filing to a hearing in those proceedings was just over 3 years The average time from a hearing to tariff certification was almost 13 years (emphasis added)
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Whassup on current high profile JRs (ie Appeals)
bull The Access Copyright Judicial Review re Provincial Tariff
bull The ReSound Judicial Review re Tariff 8 (the ldquoPandorardquo tariff
Tribunal Applicable Regulations or Rules re Procedure
Mandate of Significant amp Substantive Decisions per year
of Members of Staff FTE
Budget (ie net cost of operations)
Copyright BoardNo procedural regulations in place other than Boardrsquos informal and very general ldquoDirective on Procedurerdquo
Setting Copyright Tariffs and Levies pursuant to Copyright Act app 3 per year (S 77 ldquoUnlocatablerdquo decisions cannot be considered as ldquosignificantrdquo and have never involved an actual hearing)
Up to 5 full time Currently 1 full time + 1 part time Chair (currently vacant)who must be a sitting or retired judge
16 3514185 (2013-2014)
Competition Tribunal Competition Tribunal Rules (SOR2008-141)
Dealing with wide range of applications arising from Competition Act app 10 per year since 2000
Up to six judicial members from Federal Court and not more than eight lay members
9 3184043 (2014-2015)
CRTCCanadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR2010-277)
Wide range of licensing and regulatory oversight in broadcasting and telecommunication internet ant-spam etc app 600-700 decisions a year ndash many minor but many very important eg 2014
Chair two Vice-Chairs and up to 10 national and Regional Commissioners
437 17586000 (2013-2014) (Expenses of 65030 offset by revenues of 47444)
Canadian International Trade Tribunal See Act and Regulations here
ldquointernational trade cases procurement cases customs and excise tax appeals and government-mandated inquiries within the Tribunalrsquos jurisdictionrdquo129 decisions in 2013-2014
Up to seven full time members including a chairperson
62 13581000
Canadian Industrial Relations TribunalCanada Industrial Relations Board Regulations 2012 (SOR2001-520)
Handles more than 600 labour related matters under Federal jurisdiction including Status of the Artist Act Processing times are published here
Chair two Vice-Chairs up to six full time members and additional part time members
97 17567000
Trademarks Opposition Board See Practice in Trademark Opposition Proceedings
Rules on oppositions to registration and s 45 expungement Many of these rulings involve hearings 741 decisions rendered in 2011-2-12
App 10 members and 12 staff These are all public service positions
12 NA
Supreme Court of CanadaRules of the Supreme Court of Canada (SOR2002-156)
Highest Court of Canada Process more than 500 leave applications and issues approximately 80 decisions per year on average about 4 months after hearing and 15 months total duration from application for leave to appeal
Nine full time justices 215 42011659 (net cost of operations est for 2013-2014)
Prof De Beer Distribution of certified tariffs
applicable for the years 1999-2013 (wwwJeremyDeBeerca)
Prof De Beer According to my data 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013 There are 209 pending tariffs that were proposed for that period but have not yet been certified The certified tariffs took an average of 35 years to certify after filing The average pending tariff has been outstanding for 53 years since filing as of March 31 2015 On average tariffs are certified 22 years after the beginning of the year in which they become applicable which is in effect a period of retroactivity The standard deviation in the time from proposal filing to tariff certification is 2 years A hearing was held in 28 of tariff proceedings The average time from proposal filing to a hearing in those proceedings was just over 3 years The average time from a hearing to tariff certification was almost 13 years (emphasis added)
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Tribunal Applicable Regulations or Rules re Procedure
Mandate of Significant amp Substantive Decisions per year
of Members of Staff FTE
Budget (ie net cost of operations)
Copyright BoardNo procedural regulations in place other than Boardrsquos informal and very general ldquoDirective on Procedurerdquo
Setting Copyright Tariffs and Levies pursuant to Copyright Act app 3 per year (S 77 ldquoUnlocatablerdquo decisions cannot be considered as ldquosignificantrdquo and have never involved an actual hearing)
Up to 5 full time Currently 1 full time + 1 part time Chair (currently vacant)who must be a sitting or retired judge
16 3514185 (2013-2014)
Competition Tribunal Competition Tribunal Rules (SOR2008-141)
Dealing with wide range of applications arising from Competition Act app 10 per year since 2000
Up to six judicial members from Federal Court and not more than eight lay members
9 3184043 (2014-2015)
CRTCCanadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR2010-277)
Wide range of licensing and regulatory oversight in broadcasting and telecommunication internet ant-spam etc app 600-700 decisions a year ndash many minor but many very important eg 2014
Chair two Vice-Chairs and up to 10 national and Regional Commissioners
437 17586000 (2013-2014) (Expenses of 65030 offset by revenues of 47444)
Canadian International Trade Tribunal See Act and Regulations here
ldquointernational trade cases procurement cases customs and excise tax appeals and government-mandated inquiries within the Tribunalrsquos jurisdictionrdquo129 decisions in 2013-2014
Up to seven full time members including a chairperson
62 13581000
Canadian Industrial Relations TribunalCanada Industrial Relations Board Regulations 2012 (SOR2001-520)
Handles more than 600 labour related matters under Federal jurisdiction including Status of the Artist Act Processing times are published here
Chair two Vice-Chairs up to six full time members and additional part time members
97 17567000
Trademarks Opposition Board See Practice in Trademark Opposition Proceedings
Rules on oppositions to registration and s 45 expungement Many of these rulings involve hearings 741 decisions rendered in 2011-2-12
App 10 members and 12 staff These are all public service positions
12 NA
Supreme Court of CanadaRules of the Supreme Court of Canada (SOR2002-156)
Highest Court of Canada Process more than 500 leave applications and issues approximately 80 decisions per year on average about 4 months after hearing and 15 months total duration from application for leave to appeal
Nine full time justices 215 42011659 (net cost of operations est for 2013-2014)
Prof De Beer Distribution of certified tariffs
applicable for the years 1999-2013 (wwwJeremyDeBeerca)
Prof De Beer According to my data 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013 There are 209 pending tariffs that were proposed for that period but have not yet been certified The certified tariffs took an average of 35 years to certify after filing The average pending tariff has been outstanding for 53 years since filing as of March 31 2015 On average tariffs are certified 22 years after the beginning of the year in which they become applicable which is in effect a period of retroactivity The standard deviation in the time from proposal filing to tariff certification is 2 years A hearing was held in 28 of tariff proceedings The average time from proposal filing to a hearing in those proceedings was just over 3 years The average time from a hearing to tariff certification was almost 13 years (emphasis added)
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Prof De Beer Distribution of certified tariffs
applicable for the years 1999-2013 (wwwJeremyDeBeerca)
Prof De Beer According to my data 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013 There are 209 pending tariffs that were proposed for that period but have not yet been certified The certified tariffs took an average of 35 years to certify after filing The average pending tariff has been outstanding for 53 years since filing as of March 31 2015 On average tariffs are certified 22 years after the beginning of the year in which they become applicable which is in effect a period of retroactivity The standard deviation in the time from proposal filing to tariff certification is 2 years A hearing was held in 28 of tariff proceedings The average time from proposal filing to a hearing in those proceedings was just over 3 years The average time from a hearing to tariff certification was almost 13 years (emphasis added)
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Prof De Beer According to my data 852 different tariffs were certified by the Copyright Board in respect of the 15-year period between and including 1999-2013 There are 209 pending tariffs that were proposed for that period but have not yet been certified The certified tariffs took an average of 35 years to certify after filing The average pending tariff has been outstanding for 53 years since filing as of March 31 2015 On average tariffs are certified 22 years after the beginning of the year in which they become applicable which is in effect a period of retroactivity The standard deviation in the time from proposal filing to tariff certification is 2 years A hearing was held in 28 of tariff proceedings The average time from proposal filing to a hearing in those proceedings was just over 3 years The average time from a hearing to tariff certification was almost 13 years (emphasis added)
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Prof De Beer Statistics Regarding Tariffs Certified With and Without Hearings
(wwwJeremyDeBeerca)
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Just in case you were wondering
In probability theory and statistics skewness is a measure of the asymmetry of the probability distribution of a real-valued random variable about its mean The skewness value can be positive or negative or even undefined (Excerpt from Wikipedia entry for ldquoskewnessrdquo) In probability theory and statistics kurtosis (from Greek κυρτός kyrtos or kurtos meaning curved arching) is any measure of the peakedness of the probability distribution of a real-valued random variable[1] In a similar way to the concept of skewness kurtosis is a descriptor of the shape of a probability distribution and just as for skewness there are different ways of quantifying it for a theoretical distribution and corresponding ways of estimating it from a sample from a population There are various interpretations of kurtosis and of how particular measures should be interpreted these are primarily peakedness (width of peak) tail weight and lack of shoulders (distribution primarily peak and tails not in between) (Excerpt from Wikipedia entry for ldquokurtosisrdquo)
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
TYPES OF TARIFFS CERTIFIED BY COPYRIGHT BOARD BETWEEN 1999 - 2013
NUMBER CERTFIFIED TARIFFS FROM 1999 ndash
2013 (including ldquoredeterminationsrdquo)
COMMENTS and LINKS TO ACTUAL DECISIONS
Educational Rights 4 This tariff is now extinct since the collective was never able to recover its costs
Media Monitoring 4 This is a minor tariff that has occupied little Board time
Private Copying 9 Opposition to this tariff has essentially evaporated since it now only applies to the obsolete medium of blank CDs The Board lists each year from 2012 to 2016 as separate tariffs but there were only two proceedings for that period
Public Performance of Music 39 This is by far the major sector covered by the Board There are 47 tariffs listed but 8 of them involved both SOCAN and ReSound (formerly NRCC) so they should not be counted separately There are 41 decisions between 1999 and 2013 some of which concern relatively minor matters
Reproduction of Musical Works
11 Two of these are ldquosuspended by the Federal Court of Appeal and one became ldquointerimrdquo as of November 7 2012rdquo
Reproduction of Sound Recordings and Performerrsquos Performances
1 ldquoThe tariff to the extent it concerns CSI becomes interim as of November 7 2012rdquo
Reproduction of Literary Works
2 There are 4 decisions only one of which has resulted in an actual tariff
Retransmission of Distant Radio amp TV Signals
4 22 decisions many or most of which are procedural or ldquointerimrdquo
ldquoArbitrationrdquo NA The Board has rendered 14 decisions between 1999 and 2014 ndash all but one of which (now pending in the SCC in CBC v SODRAC) were ldquointerimrdquo These are not part of Prof de Beers analysis but are included in this chart for the sake of completeness to show the Boardrsquos level of activity These are not ldquotariffsrdquo and even the term ldquoarbitrationrdquo is a misnomer
TOTAL NUMBER OF TARIFFS CERTIFIED
74 Even this is an inflated number and reflects a number of minor
ldquoredeterminationsrdquo and other less than significant events But is still the
Boardrsquos own number as calculated from the Boardrsquos own posted
information Still this is less than 10 of Prof de Beerrsquos number of 852
Number of tariffs per year on average 49
This the total of 74 certified tariffs divided by the number of years being
studied (15) This is greater than the number of decisions per year
since many of these tariffs are unopposed because they are unimportant or
the objectors cannot afford to participate in the Boardrsquos process or for
other reasons ndash such as the oppressive and intrusive interrogatory
process
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Anecdotal Actual Facts of Life I have repeatedly suggested on an anecdotal basis that
bull It often takes the Board four years or more for a tariff to reach the hearing
stage bull It often takes the Board two years or more after the hearing to render a
decision bull The decision is invariably retroactive
Few if any who are familiar with the recent history of the Board would disagree with my ldquoanecdotalrdquo observations which are easy to confirm ndash as seen below Even the recently retired Chairman stated almost 10 years ago that the delay in decision rendering was excessive This was at a time when parties were grumbling about mere 18 month delays In a published speech from 2006 the now retired Chairman of the Copyright Board (William Vancise) stated shortly after his appointment
I am not at all happy with the time it takes to render a final decision I have tried to address the issue and I can assure you it will be resolved If the Supreme Court of Canada can render a decision within six months of a hearing there is no reason why this Board cannot do the same My goal is to see that this occurs (emphasis added)
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
More Facts of Life Quite apart from the rather inapposite conflation of the Copyright Board and the Supreme Court of Canada the bottom line is that the trend clearly seems to be getting worse rather than better Hence Prof de Beerrsquos overall conclusions are instantly questionable for example when he suggests at page 37 that ldquoIt took on average a further 129 years for the Board to issue a decision and certify the tariff following a hearingrdquo That obfuscates the fact that many if not most of the recent important decisions have taken much longer for example
bull The K-12 hearing had about a two year delay in rendering the decision which was then reversed by the Supreme Court of Canada
bull It has been 25 years since the Boardrsquos hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) Finally on May 22 2015 we had a decision which I have discussed in detail that is subject to judicial review
bull The ldquofitnessrdquo tariff discussed below took more than two years to decide initially and more than a year to re-determine after submission of a settlement agreement It took about 8 years overall to resolve - inconclusively
bull The ReSound ldquoTariff 8rdquo ldquoPandorardquo decision took about 18 months from the hearing to render a decision
bull SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition) 2009-2012 had approximately a 25 year delay from hearing to decision and is now pending before the Supreme Court of Canada
bull The current Access Copyright K-12 tariff hearing concluded almost 17 months ago No decision yet
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
eg Recent ReSound ldquoFitnessrdquo Tariff (2008-2012)
bull Tariff was filed June 2 2007
bull Board Hearing April 27 to May 11 2010
bull Board Decision July 6 2012
bull Judicial Review Application Filed August 7 2012
bull Hearing by Federal Court of Appeal (ldquoFCArdquo) November 19 2013
bull Decision by Federal Court of Appeal February 24 2014
bull Parties File Settlement March 21 2014
bull More than a year later Board approves settlement agreement with minor adjustment March 27 2015
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Some Questions that Need to be Asked
1 Why does the Board not follow the normal procedure in virtually all other fora which is to make the
applicant explain at the outset of a case ndash not at its conclusion - the basic facts and legal doctrines
on which it relies
2 Why does the Board not impose some clear rules on interrogatories such as limiting the need for
responses to a sensible representative sample of an associationrsquos members rather than all
members of an association Even if some objector associations do not understand or are unaware
of this possibility why doesnrsquot the Board take more explicit and proactive steps in the public
interest to ensure that they become aware and that this in fact is actually done
3 Why does the Board not exercise proactive case management like the Federal Court that would
force the parties to move their case forward expeditiously
4 Why does that Board consider itself not to be bound by the normal well-established rules of
evidence for example regarding hearsay or reliance on bare assertions by counsel to form the
basis of a multi-million dollar interim tariff
5 Why does the Board not ldquoqualifyrdquo its ldquoexpertrdquo witnesses We see some ldquoperennialrdquo expert
witnesses at the Board who would likely not be permitted to provide expert evidence of the type
they provide to the Board to normal courts because despite their knowledge they arguably lack
the independence and objectivity required by the Court The Federal Courts insist that experts not
be ldquoan advocate for a partyrdquo
6 Why doesnrsquot the Board have a consistent policy re its practice in relation to the imposition of
ldquointerimrdquo tariffs
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
7 Why is the Board so quick to categorize important evidence as ldquoconfidentialrdquo despite
jurisprudence about open courts
9 Why does the Board apparently have no interest in the implementation of regulations that
might address some of the foregoing issues The Board itself can suggest regulations pursuant
to s 666 of the Copyright Act and the Government may implement regulations pursuant to s
6691
8 Why does the Board suggest that the length of time the Board takes to render its decisions has
anything to do with ldquolack of resourcesrdquo The Board is already by an order of magnitude the
largest tribunal of its kind anywhere in the world It has almost 10 of the budget of the
Supreme Court of Canada but renders less than a handful of significant substantive decisions
every year The cost of rendering one significant substantive decision by the Board must
already be among the highest of such costs of any Court or Tribunal in Canada and would be in
the neighbourhood of about $1000000 each
9 Is the Board spending too much time on internal legal and economic analysis which may be
resulting in delay and may be problematic in in terms of procedural fairness
10 Appointment process
11 Hangover issue re pending decisions
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
The Mandatory Tariff Spectre
The Federal Court of Appeal (ldquoFCArdquo) held that a collective management organization (ldquoCMOrdquo) can ask the Board to approve a licensing scheme and then impose it on users If correct such users then have no choice other than to deal with the CMO and must as a matter of law pay the entire specified royalties if they make even a single unauthorized use of a single work from the CMOrsquos repertoire By so ruling the FCA has upended the legislative scheme The Interveners submit that this holding (hereinafter referred to as the ldquomandatory tariffrdquo theory) lacks any basis in law standard principles of statutory interpretation contradict it the case law debunks it and the legislative history discredits it In addition to absurd results that contradict fundamental tenets of the rule of law the ldquomandatory tariffrdquo theory threatens to upset the balance in Canadian copyright law It would overly compensate owners contrary to this Courtrsquos holding in Theacuteberge and it could gut fair dealing and other usersrsquo rights contrary to what this Court cautioned against in CCH (emphasis added) From CIPP amp Katz intervener brief dated March 2 2015 to the SCC in CBC v SODRAC (notes omitted)
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
The York University Litigation
bull Relationship to Copyright Board Post-Secondary Tariff (which is proceeding effectively by default which poses an enormous problem for the Board and everyone else)
bull Current Status Deep in discovery confidentiality amp protective order bifurcation etc
bull The Mother of Canadian Copyright Litigation cases
bull Whatrsquos at stake and what could happen if York loses
bull Timing Board Post-secondary case begins January 19 2016 and York case begins May 16 2016 for 15 days
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
How is this affecting Copyright Board practice bull Proposed inaugural tariffs maybe no longer bankable
assets bull Costs of objection may deter objectors ab initio and may
contribute to withdrawals and default proceedings bull Large law firm representation of collectives being
replaced by in-house counsel bull Will clients expect law firms to ldquotake sidesrdquo in tariff cases
either for collectives or for users as in labour or drug patent practice
bull New tariffs resulting from legislation unlikely in ldquoanti-taxrdquo environment
bull Some collectives may cease to be viable bull Is ldquothe party overrdquo for the multi-million dollar files that
take for four to six years or more just to get a Board decision
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
What is the Solution bull Current Working Group suggestions may only make things worse ndash why bull Very short term
ndash The new Chair Hon Robert Blair has important experience in reforming the Ontario courts (and indirectly the Federal Courts) in the 1990rsquos
ndash Hopefully he can do a lot from within the Board and without needing to wait for new regulations
bull Medium term ndash Regulations pursuant to already enacted authority to deal with steps
of a proceeding timelines discoveryinterrogatories ldquoexpertsrdquo rendering of decisions etc
ndash Possibly even costs of objectors and interveners though this may require legislation
bull Long term ndash Another Parker Commission to look at roles responsibilities
governance and oversight of collectives ndash Possibly even looking at ldquomachineryrdquo issues involving Patented
Medicine Prices Review Board Notice of Compliance litigation regime Competition Tribunal and the possibility of a new ldquoIntellectual Property Tribunalrdquo or other innovative and visionary tribunal solution as advocated by Gordon F Henderson in 1991
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Deacutejagrave vu all over again Bill C-93 an omnibus budget bill ldquowas defeated in the Senate on June 10 1993 Among other measures this Bill provided for the merger of the Copyright Board and the Trade Marks Opposition Board Thus the jurisdiction of the Board remains unchangedrdquo
(CB Annual Report 1993-1994)
As of 2001
Only four bills -- Bill C-43 on abortion Bill C-93 on the reorganization of certain boards agencies commissions and tribunals Bill C-28 on the LB Pearson International Airport and C-220 on profiting from authorship respecting a crime ndash have actually been defeated in the past several decades with all of these defeats occurring in the 1990s
THE CANADIAN SENATE IN FOCUS 1867-2001 Committees And Private Legislation Directorate May 2001
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
The Future bull What will the effect be of
ndash ldquocord cuttingrdquo ndash Streaming ndash DRM amp TPM ndash Internet everywhere ndash And new things we canrsquot imagine
bull How much longer will collectives be useful or sustainable
bull How much longer will we even need a Copyright Board
bull Until then we all need to help the Board work well to serve Canadians and live up to its important legacy from Judge Parker
bull And remember Yogi Berra (RIP)
Conclusion
Conclusion