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

Among the options proposed in consultation paper for reform to the copyright board of Canada it could be outlined some of them with regard to collective rights management and tariff setting procedure, including the practice of individual agreements or the analogue of interim license in USA.

Another challenge restraining the timeliness of the Board’s decisions may be the volume of matters coming before it each year. Reducing the number of matters it must consider could provide the Board with more time to consider each, resulting in faster decision-making. Such a goal could be accomplished by permitting all collective societies to enter into licensing agreements of overriding effect with users and without Board involvement or extending the timeframes following which previously certified tariffs would need to be renewed.

All collective societies could be permitted to choose whether to file proposed tariffs with the Board or to establish licences independently with prospective users that would take precedence over any tariff approved or licence fixed by the Board in respect of overlapping uses, parties and effective periods. Nevertheless, in respect of at least some uses and the statutory rights to remuneration, it is likely that certain collective societies would continue to seek Board-certified tariffs because of the difficulty of concluding and enforcing private agreements with many different prospective users.

In order to assist parties newly enabled by such a system to establish private licensing agreements where they would prefer to do so rather than engage in more costly and time-consuming tariff proceedings, the existing statutory scheme whereby some parties may instead request individual dispute resolution by the Board could be broadened to include all collective societies.

However, if collective societies continue to file proposed tariffs and many additional parties seek such individual dispute resolution, it is possible that the Board would be required to consider just as many or more matters compared to the current system and the efficiency gains of the proposed system would be moot. That said, the fact that the Board receives very few requests per year for individual dispute resolution in cases where that option is already available indicates that it would not be a significant additional burden in the proposed framework. Nevertheless, where multiple requests for such individual dispute resolution are filed pertaining to the same or similar rights or uses, it may be helpful to permit the Board to notify all affected parties that a proposed tariff of overriding effect ought to be filed instead.

The Board could be required to examine agreements at first instance rather than at the request of the Commissioner of Competition, as is presently the case. As part of this examination, the Board could notify the Commissioner if it believes there are public interest concerns related to competition that the Commissioner may wish to investigate pursuant to the Competition Act. It could also be clarified that agreements filed with the Board will be made publicly available.

Although many parties may wish to keep the terms of their agreements confidential, opening them to the public would provide benchmarks that could facilitate more free market-based negotiations requiring less Board intervention going forward. By requiring or incentivizing greater filing of agreements, the Board would also develop a catalogue of agreements that could be used as benchmarks in its own evaluations of proposed tariffs or individual disputes.

At present, proposed tariffs filed with the Board must specify that their royalties are to be effective for periods of one or more calendar years. However, the appropriate length of a tariff’s effective period depends greatly upon the uses it encompasses, and in many cases could be longer than one year. It may therefore be desirable to stipulate a longer minimum effective period for proposed tariffs (e.g., three years). Lengthening tariffs’ effective periods in this way could reduce the number of proposed tariffs that are filed with the Board annually, freeing up its time and resources for redirection to other matters.

Collective societies could be required to file their proposed tariffs longer in advance of their proposed effective dates, which would allow the Board more time to adjudicate. Existing statutory frameworks could also be amended to allow for the use of the copyrighted content at issue and the collection of royalties pending the approval of tariffs in all Board proceedings rather than just some, as is presently the case.

It could be established that in all cases involving a previously certified tariff that a proposed tariff is sought to renew the previous tariff applies until the new tariff is approved. The Board could also be granted the power to make interim decisions on its own initiative and not merely when parties request it do so, as at present.