The Canadian government is planning the most significant changes to the Copyright Board of Canada in decades with a consultation set to officially launch tomorrow. Given the longstanding concerns with the Board from creators and users alike, the government has decided to place board reform on a fast track that is separate from the broader copyright review scheduled to commence later this year. The consultation, which will outline potential reforms to address delays and case backlogs, will run until late September. Navdeep Bains, the Minister of Innovation, Science and Economic Development, working with Canadian Heritage, hopes to introduce a Copyright Board reform legislative and regulatory package in early 2018.

I spoke earlier today to Bains, who explained that the government believes there needs to be quicker decisions, greater transparency, and an effort to address the current backlog given concerns about ensuring creators are paid and in bringing new innovative service to the Canadian market. The consultation, being held jointly by ISED, Canadian Heritage and the Board, will identify several potential measures to address the board delays including case management processes, establishing new case deadlines, streamlining cases before the board, as well as giving the board more power to advance proceedings, award costs, and limit the ability for parties to delay proceedings.

Bains also believes that increasing the speed of the process could be helped by reducing the number of matters the board hears. One of the most controversial proposals will likely be the possibility of enabling all collectives to enter into voluntary licensing agreements with users. The emphasis on voluntary private agreements would represent a significant shift that could impact the public interest role of the board and might require new oversight from both the board and the Commissioner of Competition as well as mandated public disclosure of private agreements. Moreover, the government is considering extending the timelines of tariffs to reduce the frequency of tariff renewals as well as measures to reduce the uncertainty that comes from retroactive application of tariffs. That might require collectives to file tariffs longer in advance thereby giving the board more time to make a determination before the effective date of the tariff.

The consultation will also raise the prospect of requiring collectives to provide more information about proposed tariffs. This could include:

the reasons for filing the proposed tariffs at the particular times they are filed

the practical uses or activities that are targeted

the types of users known to the collective society that are targeted

the proposed royalty rate and its related terms and conditions specific to each use or activity targeted

the grounds on which the proposed royalty rates, terms and conditions and effective periods have been determined

how the proposed tariffs substantially differ from any previously certified tariffs that the proposed tariffs are sought to renew

how the proposed tariffs relate to other certified tariffs, if any

how information reported by users pursuant to the proposed tariffs will be used.

Objectors could also be asked to provide additional information about their reasons for objection.

In addition to technical reforms to the board, the government wants to address ongoing transparency concerns. This could include codifying board procedures, making public the criteria considered by the board, and establishing a clear board mandate. The government is also open to new measures to increase public participation in board proceedings to restore confidence and may consider harmonizing the tariff-setting regimes in the Copyright Act. Funding issues or the size of the board are not addressed. Further, changes to the governance of collecting societies is being treated as beyond the scope of the consultation.

The decision to place Copyright Board reform on the fast track raises obvious questions about how it fits within the broader copyright review and innovation agenda. Bains confirmed that the government wants to move more quickly on the board issue than the broader review that will formally begin later this year. He noted that the government wants a “thoughtful, engaged and informed” copyright review that will likely take far longer than the Copyright Board process with a very different timeline. The government is open to addressing other copyright issues, including the ongoing abuses with the notice-and-notice system for Internet providers, in a more timely manner. Bains also acknowledged that there are definite linkages “between the changes and reforms in the Copyright Act, even including the Copyright Board process, which dovetails with the work [the government] is doing on innovation and skills development.”

Given that the issue has been simmering for years, the willingness to reform the board should enjoy general stakeholder support. The broader review of the Copyright Act will likely be far more contentious and wide ranging, with timelines that will require months of hearings to ensure that all stakeholders are given an opportunity to share their views. For now, the government is sending the signal that it recognizes the importance of copyright administration as it embarks on a long-overdue overhaul of the process and transparency of the Copyright Board of Canada.