Why Is the Copyright Board Modernizing?

The Copyright Board of Canada ("the Board") has announced the completion of Phase 1 of its Modernization Initiative that has taken place over the past four years as of May 2023. Following this, the Board released a report providing updates on the Board's overhaul of its processes, internal policies, and organizational culture including the implementation of new Rules of Practice and Procedure that came into effect on March 1, 2023. Policies like improving efficiency, transparency, and access to justice of legal processes, all aspects of the Board's initiatives, are often desirable changes in any context but why has the Board been prompted to take on this initiative?

Calls for Improvement

Numerous calls for Board reform have taken place over the past decade. Largely, comments have centered on improving the overall performance of the Board, especially with respect to the timeliness of its decision-making activities in particular its proceedings to set fair and equitable tariffs for various uses of musical works, sound recordings, and literary works.

The Board recognizes several empirical studies which found that, for a variety of factors, the tariff setting process was overly lengthy. A 2015 study by Professor Jeremy DeBeer showed that from 1999-2013 the Board took an average of 3.5 years to approve tariff proposals after being submitted with an average retroactivity period of 2.2 years. In 2016, the Standing Senate Committee on Banking, Trade and Commerce signalled in its report that decision-making delays were increasing to an average of 3.5 to 7 years for tariffs to be approved. Overall, the need for reform of the Board's processes was evident.

Various groups approve of initiatives to modernize the Copyright Board. In 2017, in collaboration with the Board, the Department of Innovation, Science and Economic Development and the Department of Canadian Heritage undertook a public consultation that resulted in the submission of around 60 briefs submitted by individuals and organizations. Many of whom recognized the imperativeness of initiatives to set reasonable timelines for decisions and relatedly curtail the method of retroactive approvals occurring several years after tariff applications have been filed.

Resulting Amendments

2018 Budget Amendments

Calls for improvement were realized in part through amendments to the Copyright Act in 2018 by Bill C-86 Budget Implementation Act. These amendments were made in order to modernize the legislative framework relating to the Board in an effort to improve the timeliness and clarity of its proceedings and decision-making processes.

Specifically, amendments included:

  • Codifying the Board's mandate and establishing decision-making criteria;
  • Establishing new timelines for Board matters;
  • Formalizing case management of Board proceedings;
  • Reducing the number of matters that must be considered by the Board;
  • Streamlining procedural steps across different tariff contexts, and maintaining differences between them only when necessary;
  • Amending relevant enforcement provisions; and
  • Modernizing existing language and structure for greater clarity.

Amendments that establish new timelines include earlier filing dates for proposed tariffs and longer effective periods for approved tariffs, as well as powers given to the Governor in Council to make additional timelines by regulation.

Additionally, amendments to relevant enforcement provisions include the availability of statutory damages for certain parties in respect of Board-set royalty rates and enforcement of Board-set terms and conditions.

Further Consultation and Change

Subsequent to these consultations and further reports corroborating the need for improvement of the Board's processes, the Board's annual operating budget was increased to $4.2 million. In addition to a regulation that came into force in 2020 that set a 12 month time limit for deliberation before the Board on proposed tariffs.

Formalizing the Rules of Practice and Procedure of the Copyright Board

In February of 2022, formal Rules of Practice and Procedure for the Copyright Board were published to take effect in March 2023. At the same time, the Board also released a notice updating the practice on filing evidence. These rules formalize practices and procedures for the Copyright Board, established in 1989, for the first time.

The new Rules of Practice and Procedure establish:

  • Updated procedures on the filing of proposed tariffs and objections;
  • Standardized conduct of written and oral proceedings;
  • The Board's case management practices;
  • Delineation of evidence practices in proceedings;
  • Processes for intervention of parties to proceedings.

Formalizing these practices and procedures is meant to streamline Board processes to provide further clarity for copyright holders and users, as well as overall efficiency.

What's Next?

With completion of Phase 1, Phase 2 will include consolidating the results of Phase 1 over the next two full tariff filing cycles and the acceleration of backlog reduction using new tools and processes. The Board will also be reviewing other mechanisms, such as the individual cases regime and the licensing regime for the use of orphan works.

Issues highlighted during Phase 1 will also be reviewed in Phase 2 to reflect on how to protect the public interest, and how to ensure effective regulation of the copyright marketplace. Players in Canadian copyright are expected to be engaged in advancing the next review of the Canadian Copyright Act.

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