OTTAWA – Given the breadth of witnesses and many proposals that have been put before the Standing Committee on Industry, Science and Technology over the last number of months, Copyright Board CEO Nathalie Théberge says the review and potential impact of the proposals will take time to assess.
“There will be a transition period, during which all players involved, including the Copyright Board and the parties that appear before it, will need to adapt and change their practices, behaviours, and, to some extent, their organizational culture,” she said, speaking about potential Act changes before the committee in Ottawa on Wednesday.
She outlined that the Copyright Board’s role is to establish the royalty structure to be paid to creators for the use of authorized works and other subject matters that have copyright protection, and estimated the value of such decisions is close to $500 million annually.
Its mandate, she says, is to set fair and equitable tariffs in an unbiased, impartial and unimpeded fashion, which she acknowledges is not always an easy task.
Théberge offered three overarching themes for the committee to take into consideration as it deliberates how to bring the Copyright Act into the 21st century.
“Committee members that are familiar with the board know our ability to render decisions that are fair and equitable and that reflect public interests depends on our ability to understand and consider the broader marketplace,” she said, comparing the process to how realtors determine the selling price of a piece of property.
“Currently, filing copyright agreements with the board is not mandatory, which often means the board has to rely on an incomplete portrait of the market. We believe the Copyright Act should provide a meaningful incentive for parties to file agreements between collectives and users. Some may argue the board already has authority to request that of parties that they provide the boards with relevant agreements. Legislative guidance would help the board avoid having to exert pressure via subpoena to gain access to those agreements, which in turn can contribute to delays which we all want to avoid.”
Théberge believes increased overall transparency within Canada’s copyright ecosystem would go a long way to helping the board reach its goals. As part of the reform, she says the Copyright Board will add its own processes, steps and practices that it believes will incentivize better information sharing among vested parties and the public.
“In a world where creators are increasingly having to manage their rights themselves, it’s important our legislative tools are written in a matter that facilitates comprehension.” – Nathalie Théberge, Copyright Board
“We [also] urge the committee, in its recommendation, to include a complete scrub of the Copyright Act, since the last time it was done was 1985,” she said. “Successive reforms and modifications have resulted in a legislative text that is not only hard to understand, but also bears some incoherencies. In a world where creators are increasingly having to manage their rights themselves, it’s important our legislative tools are written in a matter that facilitates comprehension.” And as such, she offered as an inspiration the Australian copyright act.
Increased overall efficiency is also on the board’s wishlist. “The reforms proposed in Bill C-86 will go a long way in making the tariff setting process in Canada more efficient and predictable, and, ultimately, a better use of public resources.”
To help obtain these objectives, Théberge encouraged the committee to consider changing the Copyright Act to grant the Copyright Board the ability to issue interim decisions. Presently, she said the board is only able to do so on application from a party, but she insists that it would provide the board an additional tool that would in turn influence the pace and dynamics of tariff-setting proceedings.
“We also encourage the committee to modify the Copyright Act to clarify the binding nature of board tariffs and licenses. This follows a recent Supreme Court of Canada decision, which made a statement to the effect that when the board sets royalty rates within licenses and individual cases, such licenses didn’t have a mandatory binding effect on users in certain circumstances. Some commentators have also expressed different views on how that statement could be applicable to the context before the board. We’re aware this is a controversial issue, but still invite you to study it,” Théberge said.
MARK SCHAAN, THE DEPARTMENT of Industry’s director general, marketplace framework policy branch, says the recently signed USMCA between Canada, the U.S. and Mexico preserves key elements contained in the former NAFTA agreement, but also incorporates a number of modern additions. Along with a number of new obligations, included is an updated intellectual property chapter as well as shared commitments specific to copyright which will allow Canadian creators to maintain many of the important features in the country’s copyright system.
“This will benefit creators and cultural industries by providing them a longer period to monetize their works and investments.” Mark Schaan, ISED
“The agreement also stipulates there will be an extension of copyright protection to the life of the author plus 70 years, which is consistent with the approach of the U.S., Europe and other key trading partners,” Schaan said. “This will benefit creators and cultural industries by providing them a longer period to monetize their works and investments. There is a 2.5-year transition period that will begin on the agreement entering into force, which will in turn ensure the changes are thoughtfully implemented.”
Kahlil Cappuccino, director, copyright policy, creative marketplace and innovation branch at the Department of Canadian Heritage, noted that as the Copyright Board works its way toward modernization, a more efficient and timelier decision-making process remains a priority.
“The proposed amendments contained in Bill C-86 seek to revitalize the board and empower it to play an instrumental role in today’s modern economy,” he said. “We would accomplish this by introducing more predictability and clarity in the board’s processes, codifying the board’s mandate, setting clear criteria for decision making and empowering case management.”
In order to head off unnecessary delays, Cappuccino suggested proposed amendments would require tariff proposals to be filed earlier, but they would in turn be effective for a longer period. Additionally, the amendments would allow direct negotiation between more collectives and users, ensuring the board is only adjudicating matters when needed, which would free resources to give their attention to complex or contested proceedings.
He said the reforms would also eliminate barriers for businesses and services wishing to innovate or enter the Canadian market, and would also better position Canadian creators to continue producing high quality content.
