On February 5, 2015, the Copyright Board released, for public comment, a discussion paper prepared by an ad hoc working committee composed of legal representatives for various copyright collectives and "user" groups that appear regularly before the Board.

The Board sought public input into a series of recommendations made in the discussion paper that relate to two procedural matters that affect the Board's operations ─ the identification and disclosure of issues to be addressed during a tariff proceeding, and the Board's interrogatory process. The deadline for receipt of comments by the Board with respect to these recommendations was Friday, March 6.

It should be noted that, although the Board issued the discussion paper for public comment, the Board did not itself write the discussion paper or develop its recommendations. Instead, this work was done entirely by the working committee.

Criticism of the Board

Notwithstanding this fact, the release of the discussion paper ─ the purpose of which is obviously to improve and make more efficient the Board's operations ─ has resulted in criticism of the Board that has gone so far as to challenge the Board's entire existence and to recommend that it be effectively dismantled and presumably reconstituted anew. This criticism is merely the latest volley in a long series of negative comments relating to the Board that have been made from various quarters (including from me) over the years.

While, like any other government institution, the Board is not immune to criticism from either the various stakeholders who appear before it or the wider public, some of the criticism that has been made is both petty and entirely unfair to the Board. Because this criticism seems to find fault with just about everything the Board does, it is difficult to take some aspects of it very seriously. Moreover, it is worth noting that commentators who have little, if any, practical experience before the Board have been the source of  the harshest criticism over the years.

Although it is trite to say that everyone is entitled to an opinion, comments relating to the Board that advocate for its wholesale destruction should be treated for what they actually are exaggerated rhetoric. Since some elements of this longstanding criticism of the Board's operations have often tended to be unreasonable, they clearly do not deserve the attention they seek. As the old proverb goes, "It is easy to find a stick if you want to beat a dog."

The timing of the Board's decisions

This is certainly not to say that the Board's operations cannot be improved upon. This was, of course, the underlying goal given to the working group ─ to recommend ways in which the Board's procedures and processes could be made more efficient and productive.

This did not come about by accident. For years, criticisms have been raised about such matters as the "long road" to Board hearings, their overall expense to the collectives and tariff objectors alike, the unnecessarily acrimonious and lengthy interrogatory process, and the sheer amount of time it takes for the Board to issue its decisions.

On this last point, the Board's decisions are often released more than a year or two after a particular tariff matter has been heard and the proceeding taken under advisement.

Tariffs, once certified, are applied on a retroactive basis and, usually, with the imposition of interest. This is obviously unfair to the user groups that, even with an interim tariff in place, must accrue for an uncertain liability in their financial statements for years on end. As for the collectives, they must wait all this time to find out what they are ultimately going to be paid under the final tariff. In short, financial uncertainty exists for each side to a Board proceeding for as long as the Board fails to issue its final decision.

What's the problem?

There is absolutely no doubt that the Board is aware of this problem and would very much like to resolve it, but it apparently cannot. And the reason that the Board has given for many years now is always the same – an absence of the necessary financial resources from the federal government to fulfill its statutory duties under the Copyright Act.

This fact was highlighted in the discussion paper of the working committee when it referred to the recommendations contained in the June 2014 report of the Standing Committee of the House of Commons on Canadian Heritage entitled Review of the Canadian Music Industry. The paper noted, "It takes too long for the Board to render its decisions, largely because of a lack of resources."[1] If this is so, then the government should provide the Board with these resources as the tariff-setting role that the Board plays is too important to rights holders and users alike, as well as to the broader public interest.

In a speech made by former Board Vice-Chairman Michel Hétu when he retired in 1999 after completing the maximum of two five-year terms in his position, he noted that the Board had recently been given significant additional statutory responsibilities, including the legislative recognition of the new optional licensing regime that applies to many of the copyright collectives (such as CMRRA, SODRAC, and Access Copyright), as well as the neighbouring rights and private copying regimes, but had not received the necessary financial resources to deal with them. Whatever additional funding that was ever provided to the Board was insufficient to support the level of operations it required with respect to its new responsibilities.

Soon after he became Board Chairman, Justice William J. Vancise expressed his intention to shorten the length of time it took for the Board to release its decisions. In a speech given at a copyright conference held in August 2006, he noted that if "the Supreme Court of Canada can render a decision within six months of a hearing, there is no reason why this Board cannot do the same. My goal is to see that this occurs." [2]

Notwithstanding this very public statement made by the Board's then Chairman, and the Board's best efforts, this did not occur. This failure cannot possibly be due to lack of good faith or willingness to do so on the part of the Board members or staff. Instead, one must recognize that, if the Board cannot issue its decisions on a timely basis, there must be a valid reason for it.

In the Board's most recent annual report to Parliament pursuant to section 66.9 of the Copyright Act, and on the occasion of his retirement, Justice Vancise noted that, during his tenure, the workload of the Board had increased substantially without any attendant increase in government funding.

 "During my tenure, the workload of the Board has increased substantially, as evidenced by the value of all tariffs certified by the Board which is now well over $400 million, with no commensurate increase in funding. The processes leading to decisions have become more complex to manage as Board staff has been called upon to deal with an increasing number of requests to settle disputes over evidentiary matters."[3]

Justice Vancise then directly linked this lack of government funding with the issue of the length of time it takes for the Board to render its decisions.

"We as a Board strived to render decisions in a timely manner in a context of an ever-increasing number and complexity, both economic and legal, of the issues that come before it. This has become a challenge given the Board's lack of resources, recognized by many stakeholders, that has prevented us from hiring additional personnel to deal with the issues."[4]

Conclusion

So this is where things currently stand. It is also where things have stood for many years now.

The Board fully recognizes that it has a systemic problem with its inability to issue its decisions in a more timely fashion and that this significantly affects all those groups that appear before it in tariff-setting proceedings.

Moreover, the Board is well aware of how severely frustrated these stakeholder groups are with respect to this situation. Even so, the Board is seemingly powerless to resolve the issue due to the absence of sufficient government funding to support its operations and which would allow it to properly fulfill its statutory mandate under the Copyright Act.

The consequence is that the Board regularly becomes the subject of the kind of criticism that was recently made following the release of the discussion paper on February 5. As unreasonable as much of this criticism may be in view of the Board's present financial circumstances, the end result may still be the same. In other words, there may be no need for the government to take any account of this criticism and the suggestion that the Board be destroyed and subsequently rebuilt if the government is, in any case, prepared to slowly starve the Board to death.

This would be unfortunate for all concerned as the Board fulfills an exceedingly valuable economic role in our society. Hopefully, in the future, the Board will be given the financial tools necessary to do its job. In any event, in response to recent criticism of the Board, there is absolutely no need for the baby to be thrown out with the bathwater. Not only would it be more prudent to keep the baby, but some of the bathwater may be salvaged as well.