Evidence to Senate Standing Committee on Banking, Trade and Commerce: Thursday, November 3

On Thursday, November 3, I will appear via videolink before the Senate of Canada’s Standing Committee on Banking, Trade and Commerce, part of the regular five-year review of the Copyright Act (see s. 92: “Five years after the day on which this section comes into force and at the end of each subsequent period of five years, a committee of the Senate, of the House of Commons or of both Houses of Parliament is to be designated or established for the purpose of reviewing this Act”). You can download my report on the Copyright Board — Best Practices in Administrative Decision-making: Viewing the Copyright Board of Canada in a Comparative Light — here.

Here is a draft of my brief remarks to the Committee:

Thank you Mr. Chairman. I appear here today in a personal capacity. Obviously the Committee’s interest in my presence has its origin in a report I prepared earlier this year for Canadian Heritage and Innovation, Science and Economic Development Canada. My report — itself prompted by Professor de Beer’s report — is independent and does not reflect the views of the government departments involved, still less the views of the Copyright Board of Canada. I have provided copies of my report to members of the Committee in both official languages. The executive summary and recommendations provide a useful overview of the contents of my report. Today, I will limit myself to some brief general remarks about the background to my report.

First, I am generalist rather than a specialist. My primary area of academic expertise is the general principles of administrative law — how administrative bodies should be structured and how their decisions should be reviewed by the courts. While I am conversant with the overarching principles of intellectual property law and well aware of the problems caused by increased technological and commercial complexity, I am not an expert on the intricacies of copyright law.

Perhaps counter-intuitively, this assisted me in the production of my report. Sometimes it is desirable and even necessary to bring in objective outside observers. I would say that this is the case in respect of the Board. The subject-matter experts have fought themselves to a standstill in the various forums provided by the Board. The unfortunate result is that although there is widespread agreement that the Board is struggling to deal with the challenges of contemporary copyright law — now underpinned by the analysis carried out by Professor de Beer — there is no agreement on how the Board ought to address those challenges.

The advantage I had, not having a dog in this particular fight, was the ability to bring an external perspective to bear on the Board’s operations. Accordingly, I did not feel that I was bound in any way by the Board’s existing practices or the preferences of parties who appear before the Board.

While copyright practitioners would no doubt protest that their domain is sui generis, such that reference to other decision-making bodies fails to account for the unique nature of contemporary copyright, my view is that the comparison with peer decision-makers that I conducted has thrown valuable light on the Board’s operations.

In some ways, the Board is out of line with comparable bodies. Given the slow pace of some of its decision-making, as outlined by Professor de Beer, the onus should be on the Board to demonstrate why it should not emulate peer tribunals that discharge their mandates more efficiently.

Second, all of the available evidence, especially the inability of the Board’s stakeholders to formulate agreed positions about how the Board can address the challenges it faces, suggests that the prevailing culture before the Board is problematic and needs to be changed.

It is possible that culture change could be effected without making any change to the Board’s procedures. However, the Board has not proved capable of effecting such a culture change, despite its occasional exhortations to parties to conduct themselves more appropriately. As a result, I doubt that cultural change can be achieved without expanding  the range of tools the Board has at its disposal to shape the behaviour of the parties that appear before it. Of necessity, this requires the Board to move into line with peer tribunals, for instance by being enabled to issue costs awards against parties that abuse or misuse its procedures and by having presumptive formal rules that condition the expectations of the parties that appear before it.

Following my recommendations would give the Board the best of all possible worlds. Its procedures would come into line with those of peer tribunals and it would have the tools to effect necessary culture change.

In my view, creative leadership and wise husbandry of resources would permit the Board to implement my recommendations without additional funding. Whether additional funding is justifiable is difficult to assess: as I note in my report, a much more detailed comparative study would be required to prove the need for extra resources. But I say this out of academic caution. Lawyers can rarely prove a hypothesis to be fully true or absolutely false. Nonetheless, my report and Professor de Beer’s report provide information that, if used with common sense and practical wisdom, will be valuable to legislators and others in the review process.

At an event in Ottawa in May, former Board Chairman Vancise offered some critical comments on my report. Here is what he had to say:

The report’s proposed solutions for better managing our process are definitely interesting, but in certain cases they risk working against the objectives for streamlining procedure. The additional procedural steps suggested also raise resource issues. Moreover, we must emphasize that the Board’s procedure is, in fact and practice, already governed and structured through a variety of tools, notices and ad hoc orders. It is tailored to the main procedural steps established by the Copyright Act.

With respect to recommendation 1 of the report, the awarding of costs in a regulatory proceeding as distinct from a trial or other adversarial process is not only impossible but not helpful. To take an obvious example, should Access Copyright be punished in costs in both Government and K- 12 because it did not achieve the amount of the tariff that it requested or should it receive costs on a lesser scale because it achieves only a minimal amount of what it requested. The Board’s role is to set a tariff that is fair and equitable both for the right holders and the users. There are no winners and no losers. In my tenure at the Board, I can hardly think of a situation that would have warranted awarding costs. The legal community that practices before the Board acts in good faith, representing their clients’ interests vigorously. There may be at times examples of “remedial overreach” or expressions of “litigation culture” but this does not warrant costs.

With respect to recommendation 2, as to formalising procedural rules, only 2 of the 15 stakeholders recommended it during the 2015 public consultation on the Report of the Working Committee on Two Procedural Issues. In addition, recommendations 2 and 3 (retain the Model Directive) in my opinion appear to be somewhat contradictory.

Recommendation 4, calling for cultural changes, is probably best answered by looking at what happened when the Board requested parties who regularly appear before it to come together to make the suggested changes to improve the efficiency of the Board, in the form of a Working Committee. Without being too critical, each side chose to advance suggestions which would advance the interests of their clients as opposed to looking at the process as a whole.

With respect to recommendation 5, when doing a comparative analysis, it is crucial to go beyond the simple administrative steps involved in each process and try to assess the burden associated with the quantity and complexity of the issues a tribunal has to deal with. I would be the first to acknowledge that there are perhaps ways to streamline the process but most of the suggestions that I have seen so far are either impractical or not possible given the current structure of the Board. Take case management and/or pre-hearing conferences for example. It would seem to me that all this would do is to increase the complexity and expense of the process without achieving any predictable shortening of the timelines that it takes to render decisions. As for the Model Directive on Procedure, it is designed to facilitate the hearing of all matters on a case-by-case basis in order to deal with complexities as they arise. What is required is the cooperation of those parties who regularly appear before the Board requesting a tariff or objecting to the tariff to realistically assess their positions and seek out the relevant and necessary information to enable the process to proceed expeditiously. This is a significant aspect of the practice before the Board. Each case is governed by a tailored schedule agreed upon by the parties.

Some comments are in order in response.

First, I certainly would not envisage costs being awarded in most or even the majority of cases. Costs awards, in this context, should be used to promote expeditious proceedings, not to defray legal expenses incurred by the parties. As I mentioned in the report, “provisions for the smooth unfolding of litigation have to be backed by sanctions” (at p. 36). They would “be used to punish those who do not comply with the administrative decision-maker’s expectations about culture and conduct” (at p. 41).

Second, there is no contradiction between recommendations 2 and 3. I explained the utility of combining harder- and softer-edged tools for ensuring expeditious proceedings in the following terms: “a regulator can try to punish (top of the pyramid) or to persuade (bottom of the pyramid) or use methods in between these extremes to cause actors to change their attitudes and actions” (at p. 40 and see the diagram on p. 41). The key point is that the full range of tools, ranging from the punitive, to the formal, to the informal and to the exhortatory, should be made available.

Third, the fact that only two stakeholders recommended a particular change is hardly an argument against it. As Chairman Vancise himself goes on to observe “each side chose to advance suggestions which would advance the interests of their clients as opposed to looking at the process as a whole”. Their self-interested views should surely not inhibit the introduction of reforms. The benefit of having outsiders standing above the fray and making objective observations about how participants conduct themselves is precisely the ability to make useful recommendations which the participants themselves, blinded by self-interest, would not be able to envisage.

Finally, I am sympathetic to (and expressly recorded my support for) the need for flexibility in the administrative process. But where, as here, an administrative decision-maker is plagued by delays and is following procedures that are out of line with those followed by its peers, its pleas that it is in a unique position ought to be treated with scepticism. My recommendations would allow the Board to skip procedural steps on a case-by-case basis, but it would have to justify doing so by reference to a baseline established by reference to peer administrative decision-makers who are able to discharge their functions much more effectively.

This content has been updated on November 1, 2016 at 10:21.