Copyright Board Overhaul Now An Urgent Priority

OTTAWA: Calling the Copyright Board of Canada, "dated, dysfunctional and in dire need of reform," two Canadian senators are calling for an urgent examination of the economic regulatory body to take place during the upcoming statutory review of the Copyright Act in 2017. 

In the report, issued by the Standing State Committee on Banking, Trade and Commerce and called Copyright: A Rationale For Urgent Review, senators and committee chairs David Tkachuk and Joseph A. Day cited a number of reasons for a Copyright Board evaluation to commence, among them an issue of understaffing - especially in relation to expanded responsibilities due to evolving technologies; government legislation and resources;  the practices of parties that appear before the Board; the overall predictability of the Board's decisions and a tariff filing and review process that takes "between 3.5 and 7 years on average" for the Board to make a decision, with the delays being viewed as harmful to Canada's cultural industries.

Since being established in 1989, The Copyright Board of Canada has been mandated to set tariffs to be paid for the use of cultural works, that are fair and equitable for both Canadian copyright owners and the Canadian users of copyright-protected works. But the Board has come under fire for its sluggishness, often issuing retroactive rate adjustments near the end of negotiated time periods, and for being unable to act in step with rapidly changing technologies that quickly impact cultural rights-holders.

But witnesses also suggest the Board has been handcuffed by the government itself: in 1997, legislative changes that expanded the Board's jurisdiction to include the administration of performance copyright tariffs through collective societies, sound recordings and television broadcaster communication signals were not accompanied by any additional hires or resources, creating operational difficulties. 

Furthermore, the November 2012 passing of the Copyright Modernization Act, combined with the establishment of new legal principles that find the Board's decisions subject to appeal by the Federal Court, have also compounded the Board's workload to the point where delays are inevitable. The lack of collective societies to harmonize their submissions and language when responding to the same tariff proposal is also cited as a reason for delayed decisions.

Top of the list in terms of committee findings is the tardy review process.

"The Board’s lack of timely decisions cause uncertainty while the cultural sector awaits a decision about a particular tariff; in particular, businesses must either proceed without definitive information about the pricing and/or permitted uses of their products or services, or – as some witnesses indicated – decide not to enter the Canadian cultural market," notes the report. "According to Google Canada, this uncertainty has a disproportionately negative effect on smaller businesses and curtails the development of new services.

"Moreover, Access Copyright stated that, because of the Board’s lack of timely decisions, rights holders may be inhibited from renewing or re-negotiating licences, and artists and publishers may be without revenue for many years while they await the Board’s decision about a tariff."

Witnesses appearing before the Standing Committee also suggested a number of potential Copyright Board improvements, including the imposition of deadlines in relation to the Board’s decision making; case management; simplified procedures;  eliminating retroactive decisions public consultations and operating the Board on a full-time basis, since it currently comprises one full-time vice-chair, two part-time positions and two vacant posts. 

Stating that the Board did not – or could not – provide the committee with solutions to the problems identified by witnesses, the committee recommended  further investigation and timely action "in a thorough, in-depth examination of the Copyright Board of Canada's mandate, practices and resources."

In announcing the Committee's findings, Senator Day said: “Simply put: uncertain royalties mean uncertain paychecks. In our investigation, we found the Copyright Board to be slow and its practice very dated."

Added fellow Senator Doug Black: "As Senator Day has so clearly identified, it was our observation that the Copyright Board, despite its best intentions, there is no maleficence here at all, but despite best intentions, the Board is not only not assisting the cultural industries, it is a block to the cultural industries...We also learned that the majority of members are part-time – so it’s unfair to expect that the job can get done." 

Although he welcomed the results, Music Canada president and CEO Graham Henderson told FYIMusicNews that this action was, "shockingly overdue, considering there's been a consensus regarding its inefficiencies for a decade."

Henderson said this report "sheds all the light" on Copyright Board functionality.

"This is a public study undertaken by the Senate of Canada in the form of public hearings, at which every interested stakeholder testified in public, so for the first time we get a very public airing of all sides: what does the user community think? What does the creative community think? And what does the Board itself think? What about the academics? Everybody gets to weigh in. Everybody gets to have their say.  The Senate (hears) these comments, and then they render their verdict, which has to be one of the most blunt verdicts I've read from a committee in all the years I've been doing what I've been doing."

Henderson doesn't have a timeline for when he expects the review recommendations to be investigated or implemented, but said while in Ottawa on Thursday that he "made it a point to raise it at every meeting I had with government officials, so we and the rest of the community, who have sought these changes, will actively move to ensure that the government responds promptly to this call to action."

The brief study on the operations and practices of the Copyright Board of Canada was conducted over two months by the Standing Senate Committee on Banking, Trade and Commerce. The study's participants included former CTV newscaster, senator Pamela Wallin.



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