snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Public Consultation on Reform of the Copyright Board of Canada Launched

Posted in Copyright, Intellectual Property
Eriq YuKeith Rose

From August 9, 2017 to September 29, 2017, Innovation, Science and Economic Development Canada is holding a public consultation on proposed reforms to the Copyright Board of Canada.

Among its other regulatory functions, the Copyright Board of Canada establishes the amount of tariffs to be paid for copyrighted content in a variety of areas where a copyright collective is tasked with administering those rights. These areas include music streaming, the public performance of music, educational copying, and the retransmission of television signals.

The consultation comes after a lengthy history of stakeholder complaints concerning the decision-making processes of the Board, including lengthy delays in determining the quantum of tariffs and a lack of transparency and predictability in arriving at those tariff decisions. A 2016 Senate Study revealed that the Board took, on average, between 3.5 to 7 years to make a tariff decision, leading to reduced economic activity within Canada’s cultural industries.[1] The government now recognizes that urgent reform is necessary to underpin innovation and to enable access to new and diverse streams of copyright revenue.

The government discussion paper referenced in the consultation process identifies 13 options for reform, broadly categorized into four categories:

  1. Better enable the Board to deal with matters expeditiously, such as streamlining the Board’s decision-making framework, implementing case management, and empowering the Board to award costs between parties.
  2. Reduce the number of matters that come before the Board each year, by expanding the existing option for some collective societies to establish individual licensing agreements with prospective users independently of the Board or lengthening the effective time periods of tariffs.
  3. Prevent the retroactivity of tariffs or limit the impact of retroactivity, by requiring longer lead times in tariff filing or allowing for copyrighted content use and royalty collection pending the approval of a tariff in all cases.
  4. Clarify the Board’s framework, mandate and decision-making processes, including codifying specific Board procedures, specifying a decision-making criteria for the Board to consider, and harmonizing different tariff-setting regimes.

Given the tremendous growth of Canadian media and technology industries, such reform should be welcome news for copyright holders and users alike. Stakeholder comments and suggestions are invited and should be sent to cbconsultations@canada.ca prior to September 29, 2017.

Submissions need not be confined to the specific proposals noted in the discussion paper.  The government is willing to consider any other potential solutions that will improve the efficiency and timeliness of the Board’s decision-making process.

Changes to the Board’s funding and structure are outside the scope of the present consultation, as are wider questions about collective management of copyright in general.  However, a broader copyright review is anticipated to begin sometime in the fall of 2017.

 

[1]Tkachuk, D., & Day, J. (2016, November). Copyright Board: A Rationale for Urgent Review. Standing Senate Committee on Banking, Trade and Commerce. Retrieved from https://sencanada.ca/content/sen/committee/421/BANC/Reports/FINALVERSIONCopyright_e.pdf