A consultation paper on options for reform to the copyright board of Canada

The Board is an administrative tribunal created by the Act that is empowered to establish, through tariffs or individual licences, the royalties to be paid in certain cases for the use of content that is subject to copyright. In almost all cases, the jurisdiction of the Board is limited to rights that are collectively managed by organizations referred to in Canada as collective societies.

Its procedures now also include multiple tariff-setting regimes, a mechanism for reviewing independently established licensing agreements between collective societies and users, a scheme for fixing licences between specific parties that cannot independently reach agreements and a system for granting licences in respect of copyright belonging to owners who cannot be located. The Board’s processes also facilitate the disclosure of information fundamental to the valuation of the use of copyrighted content, which informs and stimulates market-based negotiation of licences between rights holders and users.

The Board is an adjudicator often of first instance, which requires it to interpret and apply many provisions of the Act. As a matter of course, the Board hears and rules upon complex disputes of fact and law relating to copyright and related rights between rights holders and users based on evidence and a highly specialized understanding of relevant legal and economic principles. As with other adjudicative bodies in Canada, it exercises its specialized decision-making functions at arm’s-length from government.

The Board regulates the balance of market power between rights holders and users to ensure that the value of the use of copyrighted content is fair to all parties and end-users. This function includes limiting market actors’ exercise of monopolistic powers, which was a core motivation for the creation of the precursor of the Board in the 1930s. In doing so, the Board also increases the availability of copyrighted content to the public, including Canadian cultural content.

A number of factors may contribute to delays in Board decision-making. For instance, the framework of the Board may be too permissive of contributions to delays from both the Board itself as well as parties and thereby insufficiently enable the Board to deal with matters expeditiously. Moreover, a lack of clarity regarding specific Board procedures or its mandate, in either the Act or its Model Directive, could create confusion among participants and result in further inefficiencies. A lack of clarity regarding the Board’s mandate may also affect the judicial review of Board decisions by courts.

There are many potential ways in which the Board’s framework could be reformed. One option could be to streamline certain aspects of the Board’s decision-making framework, such as establishing as an overarching principle that the Board is required or authorized to advance proceedings expeditiously or specifying new or shortened deadlines in respect of Board proceedings. Another option could be to strengthen the Board’s ability to limit potential contributions of parties to delays, such as by implementing case management, empowering the Board to award costs between parties or requiring parties to Board proceedings to include additional information with their preliminary filings.

The Board could be explicitly required or authorized to advance proceedings expeditiously. A regulatory provision could be enacted authorizing the Board to dispense with or vary any or some of its procedural rules for the purpose of ensuring the expeditious conduct of any proceeding where the circumstances and considerations of fairness and the public interest permit.

It may be more efficient and nevertheless fair to specify additional deadlines or to shorten existing deadlines. Alternatively, the Board could be required to determine a particular timeframe for each case before it, having regard to factors such as the nature and complexity of the case, its procedural steps and the number of participants involved. To encourage accountability to such timeframes, the Board could also be required to track and make public the length of time it takes to render decisions following hearings.

To streamline its processes, case management could be implemented in respect of Board proceedings. By this model, a designated Board representative would, at the request of a party or the direction of the Board, supervise the progression of a given proceeding. In order to assist in the fair, expeditious and least expensive disposition of the proceeding, the Board could be formally empowered to issue orders following case management conferences. These orders would be binding upon the parties, but the Board could be permitted to vary them for compelling reasons on the request of a party or at its own initiative. Case management conferences could be convened at the request of a party or at checkpoints fixed by the case manager. The case manager could be a current Member of the Board or the holder of a newly created position.

The Act could be amended to give the Board explicit legislative authority to award costs between parties. The exercise of such a power could be left to the Board’s discretion or subject to certain criteria. One option could be to limit this power to cases where the Board determines that a party’s conduct has unnecessarily lengthened the duration of a proceeding and thereby contributed to an inefficient decision-making process. The use of such a power in such circumstances would nevertheless be fair even in this administrative context because undue slowdowns of the decision-making process impose compensable losses on regulated entities as well as the public generally.