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Executive Summary: A Consultation on Options for Reform to the Copyright Board of Canada
The Copyright Board of Canada is an independent administrative tribunal created by the Copyright Act. The Board establishes the cost for the use of copyrighted content in a range of areas, including music played in public places, music streaming, educational copying and retransmission of television programs. As technology evolves, the Board’s responsibilities must equally evolve to adapt to the new landscape.
The Copyright Act does not have a specific mandate for the Board, but its functions include:
- Facilitating the development and growth of copyright-based markets in Canada;
- Serving as a specialized, independent decision-maker in copyright-related disagreements;
- Safeguarding the public interest in the availability and use of copyrighted content.
The Board regulates the balance of market power between rights holders and users. It ensures creators and rights holders receive fair compensation, content providers and end-users pay fair prices and that Canadians receive broad access to copyright content.
Over the past decade, problems related to the speed of the decision-making involving the Board have continued to be raised by stakeholders and studied at length. The most pressing issue raised is the delays in the tariff-setting processes, which routinely take several years to complete.
This consultation looks to engage stakeholders and the public on how best to make these decision-making processes more efficient without limiting the Board’s ability fulfill its functions. This consultation focuses on potential technical changes to the legislative and regulatory framework.
Options to address delays at the Board fall under four broad categories of action:
- Better enable the Board to deal with matters expeditiously:
- Streamline certain aspects of the Board’s decision-making framework
- Implement case management
- Empower the Board to award costs between parties
- Require parties to provide more information at the outset of tariff proceedings
- Reduce the number of matters that come before the Board each year:
- Expand the existing option for some collective societies to establish individual licensing agreements with prospective users independently of the Board
- Lengthen the effective time periods of tariffs
- Prevent the retroactivity of tariffs or limit the impact of retroactivity:
- Require longer lead times in tariff filing
- Allow for copyrighted content use and royalty collection pending the approval of a tariff in all cases
- Clarify the Board’s framework, mandate and decision-making processes:
- Codify specific Board procedures
- Include a mandate for the Board in the Copyright Act
- Specify decision-making criteria for the Board to consider
- Harmonize different tariff-setting regimes
Addressing the problem of delays at the Board could yield important benefits for Canada’s current copyright framework, such as greater market certainty and potentially fewer costs for all stakeholders. In particular:
- Especially in the digital economy, an easier and faster route to licensing means a friendlier market environment for businesses that provide creative content to Canadians. This could lead to new, innovative content services operating in Canada, and potentially increase creator and rights holder access to additional revenue streams.
- Improved transparency and efficiency in decision-making processes means less time and money spent by parties and other participating stakeholders. This could in turn decrease frustration and market uncertainty and could ultimately create a win-win situation through more predictable royalty payments for creators and lower administration costs for users.
The consultation does not directly address the issues of funding for the Board, collective management generally or other statutory responsibilities of the Board. A determination of the Board’s funding can only be made following consideration of its role and structure in the digital era. Broader, significant policy issues, such as collective management, may be raised in the context of the upcoming five-year Parliamentary review of the Act.
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