Home > Copyright, Digital Policy, User Rights > Copyright Board of Canada Under Scrutiny

Copyright Board of Canada Under Scrutiny

Micheal Geist has an excellent column in the Toronto Star that was posted yesterday, titled “It’s time to admit the Copyright Board is broken“.  An excellent exert from that column:

Perhaps most troubling is the sense that the Board has little regard for the recent legislative and case law emphasis on the need for balance. The latest reforms included provisions that removed the need for payment for some copying by radio stations. The copyright collectives warned a House of Commons committee that the bill would “eliminate the revenues authors and publishers now received from broadcasters when reproductions of musical works are made and used for broadcasting purposes.”

Soon after the bill took effect, the Canadian Association of Broadcasters filed an application with the Board to rescind the commercial radio tariff. The Board dismissed the application, arguing that the committee comments did not constitute a basis for statutory interpretation. Instead, it called the CAB’s application “untenable” and engaged in its own statutory interpretation, suggesting that broadcasters might not be able to rely on the new exceptions.

The public is very much shut out of the Copyright Board as well. Geist did allude to this in his piece stating that the board is: ” largely inaccessible to the public”.  In 2010 I actually wrote into the Copyright Board regarding a copyright tariff.  I wanted to probe to see if the board was accepting any public comment on that specific tariff.  Howard Knopf at the time was also following the case as well on his blog.  The Board had an interesting decision on my comments after some legal wrangling by the applicant Access copyrights lawyer prior to the decision.  The decision of the Board dated Novemeber 23, 2010 stated regarding my submission:

3) In its Notice, the Board expressed the preliminary opinion that the participation of certain persons would not be of assistance in these proceedings. These persons were invited to indicate the extent and nature of any association they may have with any post-secondary educational institution outside of the Province of Quebec targeted in the proposed tariff if they wished to be granted intervenor status in these proceedings. Only Mr. Pat Donovan and Mr. Jason Koblovsky responded to the Board’s Notice. Both failed to disclose any association with a targeted institution. Neither did they offer any evidence that they may be prospective users or reasons that would lead the Board to conclude that their participation may be of assistance. A mere statement that one is “covering” the public interest or that the proposed tariff’s terms are unfair are insufficient to establish a person’s status or to explain the contribution she may make. Consequently, these persons will not be granted intervenor status.

Basically what this means is, these proceedings do not offer up any sort of public input, and you must be a “party” to tariffs in order to be heard.  That should sound very familiar to those who have followed the progression to an open regulatory policy at the CRTC regarding public comment.  Since the UBB and throttling ISP issues,  the CRTC has in recent months sought public input on numerous occasions even on mobile contracts and other consumer related issues.

We’ve seen some balance returned to the system when the CRTC went from shoving out public interest and closing proceedings off to impacted “parties”,  to consulting with Canadians on regulatory issues.  I think the same must be done with the Copyright Board. As someone who really wants to innovate in the field of media, I know it’s currently extremely expensive for me to do that, with overlapping fee’s, or the threat of being sued out of existence when tariff’s don’t exist for certain things.  It’s similar in a business sense to what happened with the CRTC.  Basically the old monopoly currently controls that regulatory body.  The mess of tariffs in our copyright system is pushing away innovation and competition in the Canadian media markets by making it extremely expensive and confusing for anyone looking to make sure they are following the law while innovating. The way to restore accountability and some sense of balance in this system is to open it up for public input.

In the 2009 Copyright Consultations, Governments own independent copyright expert David Keeble also suggested to the Government that the Copyright Board needs to open up for public input at the Gatineau Round Table discussion with then Industry Minister Tony Clement:

Another positive change would be to open up the power to initiate. As I understand it, the current legislation does not permit users to initiate suggestions for tariffs and compulsory licenses and, as a result, some digital business models are delayed while rights holders withhold their material because they’re nervous of the consequences. This is not to diminish the rights of copyright holders or to minimize their concerns. The Board would still be the judge of what’s appropriate in these cases. But if users could initiate the copyright process, then I think we would see more innovation in business models in the digital world.

I agree completely with that assertion. Opening up our regulators to public input should be expected now in the age of social media, and public policy engagement.  It also inserts public accountability onto these regulators and those who may have their hands too deep into consumers pocket books.

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