Reforming the Copyright Board

On August 9, 2017, the Federal Government announced the launch of consultations on reforms to the Copyright Board of Canada. Although this process is separate from the statutory review of the Copyright Act, which will start in November of this year, the reform of the Copyright Board could have some implications for Canadian post-secondary institutions.

The Copyright Board was established in 1989 through a series of amendments to the Copyright Act (s. 66). The mandate of the Copyright Board is to “establish … the royalties to be paid for the use of copyrighted works, when the administration of such copyright is entrusted to a collective-administration society.” The University of Alberta has regular dealings with a number of these collectives, including Access Copyright, SOCAN and Re:Sound. The Copyright Board also sets royalties and issues licenses for the use of “orphan works”, which are works still protected by copyright but for which the rights-holder cannot be located.

These consultations may have stemmed from a report from a senate committee, issued on December 1, 2016, entitled Copyright Board: A Rationale for Urgent Review. This report identified a number of challenges, the greatest of which is the Board’s consistent lack of timely decision-making. It often takes several years from the time a tariff proposal is filed to the time the Board’s decision is made, which leads to uncertainty and frustrates planning and budgeting efforts.

This timeliness issue, which continues to impact post-secondary institutions and other user groups in Canada, can be illustrated by looking at the Decisions page for the “Reproduction of Literary Works” on the Copyright Board website. Here are three examples:

1. The tariff that specified the royalties to be collected by Access Copyright for reprographic reproduction of works in its repertoire by educational institutions between 2005 and 2009 was not certified by the Copyright Board until June 2009. This tariff was ultimately re-determined and replaced in January 2013 by a revised version to cover that same period.

2. In May 2013, an interim tariff was announced to cover the period between 2010 and 2015.
Note: This is the interim tariff that was the subject of the recent Federal Court decision, Access Copyright v. York University, which determined this interim tariff’s application to be mandatory. York has announced its intention to appeal that decision.

3. No subsequent tariff decisions have been issued by the Copyright Board to cover royalties for Access Copyright related to post-secondary institutions after 2015, although the Copyright Board held a hearing in January 2016 regarding the Access Copyright post-secondary tariff for 2011–2017.

The lengthy timetable for establishing these tariffs, their potential retroactive effect, and now the indication from the Federal Court that such tariffs might potentially be mandatory, has created and continues to create troublesome uncertainty for post-secondary institutions.

These consultations will be open from August 9 to September 29, 2017. The areas identified as potential options for reform are:

• Enabling the Board to Deal with Matters more Expeditiously;
• Reducing the Number of Matters Coming Before the Board Annually;
• Preventing Tariff Retroactivity or Limiting its Impact by Other Means; and
• Further Clarifying the Board Decision-Making Process.

Each of these potential options for reform is outlined in detail in the discussion paper entitled “A Consultation on Options for Reform to the Copyright Board of Canada,” which was issued along with the announcement of the consultation.

This consultation process is distinct from the statutory review of the Copyright Act, which will begin in November 2017. The results of the consultations will likely identify topics that may be further examined during the review. More about the potential implications for post-secondary institutions of that statutory review will be discussed in a later post.

For additional information about copyright at the University of Alberta, check out the Copyright Office website, or email our help desk at copyright@ualberta.ca.

Adrian Sheppard — Director, Copyright Office

Adrian has been the Director of the University of Alberta’s Copyright Office since April 2015. One role of the Copyright Office is to educate and inform U of A students, faculty and staff on issues related to copyright. Adrian has an LL.B. from the University of Victoria.

Note: This post is intended to provide information and perspective about copyright issues, but should not be considered as legal advice.