Copyright Board Rules of Practice and Procedure: SOR/2023-24

Canada Gazette, Part II, Volume 157, Number 5

Registration
SOR/2023-24 February 10, 2023

COPYRIGHT ACT

P.C. 2023-112 February 10, 2023

Whereas, under subsection 66.6(2)^{footnote a} of the Copyright Act ^{footnote b}, a copy of the proposed Copyright Board Rules of Practice and Procedure, substantially in the annexed form, was published in the Canada Gazette, Part I, on June 18, 2022 and a reasonable opportunity was afforded to interested persons to make representations to the Copyright Board with respect to the proposed Regulations;

Therefore, the Copyright Board makes the annexed Copyright Board Rules of Practice and Procedure under section 66.6^{footnote a} of theCopyright Act ^{footnote b}.

Ottawa, January 13, 2023

Nathalie Théberge
Vice-chair and Chief Executive Officer of the Copyright Board

Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, under section 66.6^{footnote a} of the Copyright Act, ^{footnote b} approves the making of the annexed Copyright Board Rules of Practice and Procedure by the Copyright Board.

TABLE OF PROVISIONS

Copyright Board Rules of Practice and Procedure

PART 1

Definitions, Application and Interpretation

Definitions

1 Definitions

Application

2 Application

Interpretation

Liberal Interpretation

3 Varying, supplementing or dispensing with rules

4 Directions

Calculating Time Limits

5 Days not counted

6 Definition of business day

7 Time limit

PART 2

General

Defect in form

8 Validity

Non-compliance

9 Non-compliance

Quorum

10 Quorum

Filing of Documents

11 Manner of filing

12 Date of filing

Service of Documents

13 Manner of service

Language

14 Documents and proceedings

PART 3

Filing of Proposed Tariff

Notice of Grounds for Proposed Tariff

15 Filing of notice of grounds

16 Contents of notice

Other Documents

17 Filing of certain documents

Notice of Grounds for Objection

18 Filing of notice of grounds for objection

19 Contents of notice of grounds for objection

20 Additional information

21 Timing of reply

22 Sufficient information

PART 4

Conduct of Proceedings

Commencement of Proceedings

23 Notification

Statement of Issues To Be Considered

24 Joint statement of issues to be considered

25 Contents of statement

26 Lack of agreement

27 Consideration of other Issues

Case Management

28 Definition of case manager

29 Powers of case manager

30 Case management conference

31 Case management order

32 Request for variation of order

33 Joint request

Interrogatories

34 Interrogatories

Case Records

35 Authorization of filing

36 Filing in an oral hearing

37 Filing and service

38 Legal brief

39 Amendments

Written or Oral Hearing

40 Written or oral hearing

Oral Hearing

41 Simultaneous interpretation services

42 Oral hearing open to public

43 Documents received during oral hearing

44 Transcript

PART 5

Evidence

45 Supplemental information

46 Confidentiality order

47 Leave

48 Expert witness report

49 Appointment of independent experts

50 Subpoena

PART 6

Parties and Proceedings

51 Severance and Consolidation

52 Request for leave to intervene

53 Letter of comment

PART 7

Transitional Provisions and Coming into Force

Transitional Provisions

54 Proceedings commenced

Coming into Force

55 Registration

Copyright Board Rules of Practice and Procedure

PART 1

Definitions, Application and Interpretation

Definitions

Definitions

1 The following definitions apply in these Rules.

Act

means the Copyright Act. (Loi)

Chair

means the Chair of the Board appointed under subsection 66(1) of the Act. (président)

intervener

means a person granted leave by the Board to intervene in a proceeding before the Board. (intervenant)

member

means a member appointed under subsection 66(1) of the Act. (commissaire)

objector

means a person that files an objection to a proposed tariff. (opposant)

party

means, in relation to a matter in respect of a proposed tariff filed under section 67 or 83 of the Act, the collective society that filed the proposed tariff, an objector or an intervener and, in relation to a proceeding in respect of an application made under subsection 71(1) of the Act, a collective society or user referred to in that subsection or an interverner. (partie)

Application

Application

2 These Rules apply to any matter in relation to

• (a) a proposed tariff filed by a collective society with respect to rights under section 3, 15, 18, 19 or 21 of the Act;
• (b) a proposed tariff filed by a collective society with respect to royalties referred to in subsections 29.7(2) and (3) and paragraph 31(2)(d) of the Act;
• (c) a proposed tariff filed by a collective society with respect to levies referred to in section 82 of the Act; and
• (d) an application to fix royalty rates or any related terms or conditions in individual cases under subsection 71(1) of the Act.

Interpretation

Liberal Interpretation

Varying, supplementing or dispensing with rules

3 As the circumstances and considerations of fairness permit, the Board may vary or supplement these Rules, or dispense with compliance with these Rules in whole or in part, including in order to

• (a) deal with matters informally and expeditiously;
• (b) allow for meaningful participation of persons with an interest in a matter before the Board; or
• (c) deal with special circumstances.

Directions

4 The Board may, on its own initiative or on the request of a party or interested person, issue directions in respect of any procedural issue not explicitly addressed by these Rules or in respect of any uncertainty as to the application of these Rules.

Calculating Time Limits

Days not counted

5 The days included in the period beginning on December 21 in one year and ending on January 7 in the following year do not count in the calculation of a time limit set out in these Rules or in an order or a direction of the Board.

Definition of business day

6 In these Rules, business day means a day other than a Saturday, a holiday or a day that falls in the period referred to in rule 5.

Time limit

7 If a time limit set out in these Rules or an order or direction of the Board falls on a day other than a business day, the time limit is extended to the next business day.

PART 2

General

Defect in form

Validity

8 No document or proceeding under these Rules is invalid by reason solely of a defect in form or technical irregularity.

Non-compliance

Non-compliance

9 If a party does not comply with these Rules, an order or direction of the Board, the Board may

• (a) stay the proceeding until it is satisfied that the party has complied with the Rules, the order or the direction;
• (b) decide the matter only on the basis of the information on the record; and
• (c) take any measure that it considers fair in the circumstances.

Quorum

Quorum

10 In all proceedings before the Board, the quorum is one member.

Filing of Documents

Manner of filing

11 Unless otherwise provided by these Rules, a document to be filed with the Board must be filed by the electronic means specified by the Board.

Date of filing

12 The date of filing of a document with the Board is the date on which the Board receives the document. A document filed after 17:00 Ottawa local time is deemed to have been filed on the next business day.

Service of Documents

Manner of service

13 (1) Service of a document is effected by sending an email that includes the document to the person being served or the person’s authorized representative. If it cannot be effected by email, service may be effected by personal service, by mail to the address for service described in subrule (2) or by any other means that the Board authorizes.

Address for service

(2) The address for service is

• (a) the most recent address used by the person or the person’s authorized representative in their written communication with the Board with respect to a proposed tariff or an application made under subsection 71(1) of the Act; or
• (b) in the absence of the address referred to in paragraph (a), the most recent address that was used by the Board to send any notice or that appears in any notice issued by the Board with respect to the proposed tariff or the application made under subsection 71(1) of the Act or if no such address has been used or appears, the last known address of the person or the person’s authorized representative.

Date and time of service

(3) A document is served on the date on which and at the time at which the person being served or the person’s authorized representative receives the document.

Service by email

(4) In the absence of evidence to the contrary, a document served by email is presumed to have been received on the date and at the time that the email was sent.

Receipt after 17:00

(5) A document received or presumed to have been received after 17:00 Ottawa local time is deemed to have been served on the next business day.

Proof of service

(6) If a person serves a document, the person must, at the Board’s request, file a proof of service of the document with the Board, in the form and manner specified by the Board.

Proof of service — email

(7) Absent evidence to the contrary, the email referred to in subsection (1) constitutes proof of service of a document.

Language

Documents and proceedings

14 (1) Subject to subsections 68.1(1) and 83(3) of the Act, documents used in a proceeding before the Board must be in the official language or languages of the parties’ choice and proceedings must be conducted in the official language or languages of the parties’ choice.

Translation

(2) A document written in a language that is other than English or French may be filed and served only if it is accompanied by a translation of that document into English or French and an affidavit attesting to the accuracy of the translation.

PART 3

Filing of Proposed Tariff

Notice of Grounds for Proposed Tariff

Filing of notice of grounds

15 A collective society that files a proposed tariff must file with the Board a notice of grounds for the proposed tariff within seven days after the day on which the proposed tariff is filed.

Contents of notice

16 The notice of grounds for the proposed tariff must

• (a) describe the uses covered by the proposed tariff;
• (b) set out the basis for the proposed royalty or levy rates; and
• (c) include any other information required by the Board.

Other Documents

Filing of certain documents

17 (1) A collective society that files a proposed tariff that covers the same or substantially the same uses as those in the last approved tariff or, if there is no approved tariff, in the last proposed tariff must file with the Board a comparative document that indicates the differences between the two tariffs, at the same time that it files a notice of grounds for the proposed tariff under rule 15.

Publication of notice

(2) The Board must, in the manner that it sees fit, publish the notice of grounds for the proposed tariff and the comparative document.

Additional information

(3) A collective society may, at the same that it files the notice of grounds for a proposed tariff, file additional information for the Board’s consideration of the proposed tariff.

Notice of Grounds for Objection

Filing of notice of grounds for objection

18 A person that objects to a proposed tariff must file an objection with the Board in accordance with subsection 68.3(2) of the Act together with a notice of grounds for objection.

Contents of notice of grounds for objection

19 The notice of grounds for objection must, as applicable,

• (a) set out the grounds for why the Board should not approve the proposed tariff despite any alteration of royalties or levies or fixation of terms or conditions;
• (b) set out the grounds for objection to the proposed tariff; and
• (c) include any other information required by the Board.

Additional information

20 At the same time a person files a notice of grounds for objection, the person may also file additional information for the Board’s consideration of the proposed tariff and of alterations to the royalty rates and to the related terms and conditions or of the new related terms and conditions.

Timing of reply

21 A collective society that intends to file a reply to an objection under subsection 68.4(1) or 83(7) of the Act must do so within 14 days after the day on which it receives the notice of grounds for objection.

Sufficient information

22 If the Board concludes that it has sufficient information to decide a matter before it, the Board may after giving notice to the collective society and the objector, decide the matter only on the information provided in the notice of grounds for the proposed tariff, any notice of grounds for objection and any reply to an objection and on any additional information filed under subrule 17(3) or rule 20.

PART 4

Conduct of Proceedings

Commencement of Proceedings

Notification

23 The Board must, in the manner it sees fit, publish a notice when it commences a proceeding.

Statement of Issues To Be Considered

Joint statement of issues to be considered

24 (1) Subject to an order of the Board or case manager, if the Board has commenced a proceeding with respect to a proposed tariff and an objection to the proposed tariff has been filed, the parties to that proceeding other than an intervener, must jointly file with the Board a joint statement of issues to be considered.

Time limit

(2) The joint statement of issues to be considered referred to in subrule (1) must be filed within 90 days after the day on which the proceeding is commenced or within the time limit specified by the Board or case manager.

Contents of statement

25 The statement of issues to be considered must contain

• (a) a description of the issues to be considered;
• (b) if applicable, a proposal to consolidate the proceeding with one or more other proceedings with respect to other proposed tariffs filed with the Board or with applications to fix royalty rates under subsection 71(1) of the Act, or with both; and
• (c) any other information required by the Board.

Lack of agreement

26 If the parties are unable to agree on a joint statement of issues to be considered, each party to the proceeding, other than an intervener, must file with the Board and serve on each other party, within the time limit referred to in rule 24, a separate statement of issues to be considered that contains

• (a) a description of the issues to be considered and the party’s position regarding each of those issues;
• (b) if applicable, a proposal to consolidate the proceeding with one or more other proceedings with respect to other proposed tariffs filed with the Board; and
• (c) any other information required by the Board.

Consideration of other Issues

27 The Board may consider relevant issues other than those identified by the parties in the statement of issues to be considered.

Case Management

Definition of case manager

28 For the purposes of rules 23, 24, 29 to 35 and 53, case manager means the person assigned by the Chair under subsection 66.504(1) of the Act.

Powers of case manager

29 (1) In relation to a matter or any step in a matter, the case manager may give a direction or make an order that adapts, restricts or excludes the application of any provision of these Rules.

Participation in decision on merits

(2) The assignment of a member as the case manager does not prevent that member from participating in the decision on the merits of the matter.

Case management conference

30 (1) The case manager may, during the course of a matter, conduct one or more case management conferences.

Topics to be considered

(2) During a case management conference, any of the following topics may be considered:

• (a) the clarification, simplification and elimination of issues to be considered;
• (b) opportunities for an agreement to be concluded on any of the issues to be considered;
• (c) the issue of whether a question of law should be determined by the Board;
• (d) the official language the parties will use during the proceeding;
• (e) the issue of whether interrogatories should take place and their parameters as applicable;
• (f) the filing of evidence;
• (g) any questions of confidentiality;
• (h) the parameters of any expert testimony, including the possibility of experts meeting before or after a hearing to answer questions posed by the Board;
• (i) a proceeding schedule and the expected duration of the hearing;
• (j) the documents to be filed with the Board before a hearing, including legal briefs and case records;
• (k) the information and documents to be submitted to the parties at a hearing;
• (l) a timetable for subsequent case management conferences;
• (m) other issues to be resolved.

Case management order

31 After a case management conference, the case manager may make an order relating to any issue considered at the case management conference.

Request for variation of order

32 (1) A party may submit a request to the case manager to vary a case management order made under rule 31. The request must be filed with the Board and served on each other party.

Content of request

(2) The request to vary must indicate the reason why the request is being made and must include a statement indicating whether the other parties have consented to the variation.

Variation of the order

(3) The case manager may vary the order if there are compelling reasons to do so.

Joint request

33 (1) If a collective society and one or more objectors jointly submit a set of royalty rates and related terms and conditions to the Board and jointly request that the Board approve a proposed tariff based on those royalty rates and terms and conditions, they must

• (a) file a submission in support of their request;
• (b) file all agreements concluded between the parties that relate to the same uses or substantially the same uses as those covered by the proposed tariff;
• (c) identify each proposed tariff, or a portion of the proposed tariff, that is to be approved on the basis of the request; and
• (d) provide any other information required by the Board.

Procedure

(2) On receiving the request, the Board or the case manager may, if it or they consider it appropriate to do so, establish any procedural steps in the matter or make modifications to any schedule of proceeding.

Interrogatories

Interrogatories

34 The Board or the case manager may make an order to permit interrogatories and to specify their number, type, scope and form, the time limits for their completion and the person to whom they may be addressed.

Case Records

Authorization of filing

35 (1) The Board or the case manager may authorize or require a person to file a case record, a response to a case record or a reply to a response.

Service

(2) If a party files a case record, a response to a case record, or a reply to a response with the Board, they must serve it on each other party.

Contents of case record or response

(3) The case record or response to a case record must contain

• (a) a statement of case setting out the party’s position and how they intend to support it;
• (b) the documentary exhibits on which the party intends to rely, including any expert reports and sworn statements or solemn declarations of lay witnesses, if applicable;
• (c) a list of the documentary exhibits, if applicable;
• (d) a list of witnesses the party intends to call and an indication of the time required for the examination of each witness, if applicable; and
• (e) any other information required by the Board.

Contents of reply

(4) A reply to a response to a case record must contain

• (a) the documentary exhibits on which the party intends to rely, including any expert reports and sworn statements or solemn declarations of lay witnesses, if applicable;
• (b) a list of the documentary exhibits, if applicable;
• (c) a list of witnesses the party intends to call and an indication of the time required for the examination of each witness, if applicable; and
• (d) any other information required by the Board.

Filing in an oral hearing

36 Unless otherwise ordered by the Board or the case manager, in the case of an oral hearing, a collective society must file a case record and an objector must file a response to the case record.

Filing and service

37 (1) Any case record, any response to the case record and any reply to the response must be filed and served within the time limits set by the Board.

Paper copies

(2) Unless the Board orders otherwise, in addition to the electronic filing referred to in rule 11, two paper copies of any case record, response to the case record and reply to the response must be filed with the Board.

Legal brief

38 (1) The Board may, in response to a request of a party or on its own initiative and on terms that it considers appropriate, allow a party to file a legal brief and allow other parties to file a response to that legal brief.

Service

(2) The legal brief and any response to the legal brief must be served on each other party.

Amendments

39 The Board may grant leave to amend a statement of issues to be considered, case record, response to a case record, reply to a response to a case record, legal brief or response to a legal brief on the terms the Board considers appropriate.

Written or Oral Hearing

Written or oral hearing

40 The Board may hold a written or oral hearing in respect of any matter before it.

Oral Hearing

Simultaneous interpretation services

41 A party that requires simultaneous interpretation services must submit a request to the Board at least 30 days before the date of the hearing.

Oral hearing open to public

42 (1) Unless the Board orders otherwise, oral hearings of the Board on the merits of a matter are open to the public.

In camera

(2) A party may submit a request to the Board for all or a portion of an oral hearing not to be open to the public. The Board may make any order that it considers appropriate in the circumstances.

Documents received during oral hearing

43 A document that is not part of a case record, a response to a case record or a reply to a response to a case record must not be received as evidence at an oral hearing unless it is to be used only for the purposes of cross-examination of a witness or the Board permits it to be received as evidence.

Transcript

44 The Board may cause a transcript, recording or other record of an oral hearing on the merits of a matter to be prepared.

PART 5

Evidence

Supplemental information

45 The Board may, at any time in a proceeding, require a party to provide it with information or documents to supplement the record.

Confidentiality order

46 (1) At any time in a proceeding, parties may file a joint request for a confidentiality order with the Board. The request must specify the manner in which the information to be designated as confidential or highly confidential is to be treated and must be accompanied by a proposed confidentiality order.

Documents filed before commencement

(2) A party may file confidential or highly confidential information before the commencement of a proceeding only with leave of the Board.

Disagreement

(3) In the absence of an agreement among the parties, a party may file its own request for a confidentiality order with the Board, together with a proposed confidentiality order and a statement indicating the reasons why the parties could not agree.

Designation

(4) Once a confidentiality order has been made, a party may designate the information that it filed with the Board in the proceeding as confidential or highly confidential.

Warranted designation

(5) The Board may, in response to a request from a party or, after giving the parties notice, on its own initiative, determine whether the designation is warranted and make any order that it considers appropriate.

Public record

(6) Any document that is filed with the Board in relation to a matter and any related proceeding is placed on the public record, unless the document has been designated as confidential or highly confidential.

Leave

47 The Board may order that a party request leave before designating any information as confidential or highly confidential as well as provide an explanation that justifies the designation.

Expert witness report

48 (1) Every party who, in a proceeding before the Board, intends to introduce evidence given by an expert witness must

• (a) file with the Board and serve on each other party an expert witness report that
  • (i) contains a summary of the expert’s report,
  • (ii) describes the qualifications of the expert with respect to the issues addressed in the report,
  • (iii) contains the expert’s curriculum vitae,
  • (iv) sets out the issues addressed in the report,
  • (v) sets out the expert’s opinion respecting each issue addressed in the report,
  • (vi) in the case of a report provided in response to another expert’s report, sets out the points of agreement and disagreement with the other expert’s opinions,
  • (vii) sets out the grounds supporting each expressed opinion,
  • (viii) describes the facts and assumptions on which the opinions in the report are based,
  • (ix) includes any literature, documents and data specifically relied on in support of the opinions expressed,
  • (x) sets out a complete description of the methodology on which the expert has relied, and
  • (xi) sets out any caveats or qualifications necessary to render the report complete and accurate, including those relating to any insufficiency of data or research and any issues that fall outside the expert’s field of expertise;
• (b) file with the Board and serve on each other party any form that is specified by the Board in relation to the expert witness report; and
• (c) ensure that the expert witness is available for examination and cross-examination at the hearing.

Refusal of Board

(2) The Board may refuse to consider expert witness evidence if that evidence addresses issues not mentioned in any document filed under subrule 35(1) or rule 36.

Appointment of independent experts

49 (1) The Board may, at any time, by order, appoint one or more independent experts to inquire into and report on any question of fact or give their opinion relevant to an issue in a proceeding.

Expert report

(2) The report of an independent expert is to be placed on the public record of the proceeding.

Submissions

(3) Any party may make submissions to the Board with respect to the terms of the appointment of an independent expert and may file a written response to the independent expert’s report.

Subpoena

50 The Board may, in response to a request from a party or on its own initiative, issue a subpoena for the attendance of a witness at the hearing or for the production of documents.

PART 6

Parties and Proceedings

Severance and Consolidation

51 At any time the Board may, on its own initiative or at the request of any party, order that any proceeding be severed or, that any two or more proceedings be consolidated, heard together, heard consecutively or severed.

Request for leave to intervene

52 (1) Any person with an interest in a proceeding that is before the Board and that is in respect of a proposed tariff or an application under subsection 71(1) of the Act, may make a request to the Board for leave to intervene.

Filing of request

(2) The request for leave to intervene must be filed with the Board as soon as feasible after the commencement of a proceeding and served on each other party.

Form and content

(3) The request for leave to intervene must be in writing and must set out

• (a) the name and address of the requester and the requester’s authorized representative, if any;
• (b) an explanation of why the intervention is necessary and the interest of the requester in the matter;
• (c) a concise statement of the facts on which the request is based;
• (d) the issues that the requester intends to address; and
• (e) an indication of how the requester wishes to participate in the proceeding.

Submissions

(4) Any party may make submissions with respect to the request for leave to intervene by filing them with the Board and serving a copy of them on the requester within 15 days after the day on which the served request to intervene is received.

Factors considered by the Board

(5) In determining whether to grant leave to intervene, the Board must consider

• (a) whether the requester has an interest in the proceeding that is sufficient to warrant the intervention;
• (b) whether the requester will present information or submissions that are useful and different;
• (c) whether the intervention will prejudice any party to the proceeding;
• (d) whether the intervention will interfere with the fair and expeditious conduct of the proceeding; and
• (e) any other factor that the Board considers appropriate.

Decision of the Board

(6) The Board may grant or deny the request for leave to intervene and impose any condition or restriction that it considers appropriate, including a restriction on the scope of the intervention.

Notice to parties

(7) The Board must notify the parties to the proceeding of its decision.

Service

(8) Subject to any confidentiality order and any restrictions imposed by the Board under subrule (6), each party must serve on the intervener or its authorized representative any document that is filed by a party after the day on which the parties are notified of the Board’s decision to grant the request for leave to intervene.

Letter of comment

53 (1) Any interested person that does not intend to request leave to intervene but wishes to make comments on the proceeding may file with the Board a letter of comment before

• (a) the day fixed by the Board or the case manager as the final day on which any party may present their written or oral submission; or
• (b) any other day specified by the Board or case manager.

Contents of letter

(2) The letter of comment must contain

• (a) comments on the proceeding;
• (b) a description of the nature of the person’s interest in the proceeding; and
• (c) any relevant information that will explain or support the person’s comments.

Copies to parties and on public record

(3) The Board must provide all parties with a copy of any letter of comment and must place a copy of the letter on its public record of the proceeding.

Response

(4) A party may, within 15 days after the day on which the party receives a letter of comment, file a response with the Board and serve a copy of that response on all parties.

Consideration by the Board

(5) A letter of comment that is filed with the Board and any response to that letter must be considered by the Board.

Status

(6) A person that files a letter of comment with the Board does not become a party to the proceeding.

PART 7

Transitional Provisions and Coming into Force

Transitional Provisions

Proceedings commenced

54 (1) These Rules apply in respect of all proceedings before the Board whether commenced before or after these Rules come into force, except in respect of steps already taken before the coming into force of these Rules.

Directive of the Board

(2) Any proceeding commenced or document filed in accordance with a directive of the Board before the coming into force of these Rules is not invalid merely because the proceeding or document does not conform to these Rules.

Coming into Force

Registration

55 These Rules come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

The Copyright Board (the Board) currently relies on its Model Directive on Procedure (the “Model Directive”) to outline the procedure it usually follows in considering a tariff proposal and the associated objections. The Model Directive contains few information requirements for parties to support their participation (e.g. collective management societies only have to specify the royalties, terms and conditions, and period of application when filing their tariff proposals). In addition, the timelines and approaches can be tailored to each proceeding and revised along the way. Since rules of procedure vary from one proceeding to another, the Model Directive makes it difficult for parties and potential participants to anticipate how to prepare for and engage in the various tariff-setting proceedings involving them.

The fact that parties are not required to provide detailed information upfront to support their claims may also affect the quality and timeliness of the proceedings themselves. For example, prospective users may not know whether they should exercise their right to object to a proposed tariff, which may encourage them to object on principle only. The Model Directive also provides no incentive for parties to find resolution early on since disputed issues are not laid out by parties at the beginning. This can lead to delays in scheduling and lengthy interrogatories of an “exploratory nature” on issues of uncertain relevance.

From the Board’s viewpoint, the lack of information from parties early on makes it difficult to assess the complexity of the file, plan accordingly the proceeding (including determining whether a particular file warrants a hearing, whether it can be fast-tracked with no hearing, etc.), and provide informed recommendations to Board members in time for their deliberation. This is particularly problematic, as the Board now implements the Time Limits in Respect of Matters Before the Copyright Board Regulations, which impose, among other things, a 12-month timeline for the Board to render its decisions once the final submissions are filed and the deliberation phase commences.

The lack of clarity, transparency, and predictability of rules and practices supporting the tariff-setting processes has undermined the Board’s credibility and ability to effectively play its role in the Canadian copyright ecosystem as an economic regulator and independent administrative tribunal. It has sometimes led to unnecessarily lengthy and overly complicated proceedings, affecting the ability of rights holders to get remunerated and users to access copyrighted content quickly and in a fair and equitable manner. For that last reason, it has been the source of staunch criticism by the stakeholder community.^{footnote 1}

Background

The Board is an economic regulator and independent specialized administrative tribunal established by the Copyright Act. A significant part of its mandate involves determining the royalties to be paid, and the terms and conditions related thereto, for the use of copyrighted works and other subject matter when the administration of such copyright is entrusted to a collective management society (i.e. an organization responsible for collectively managing the rights and redistributing royalties to individual rights owners). The above is called the tariff-setting process. The total amount of royalties generated by the tariffs the Board certified in 2020 was estimated at $662 million.^{footnote 2}

The Board manages tariff-setting proceedings for a range of activities involving the use of copyright-protected content, including, but not limited to, the public performance and communication of musical works and of sound recordings (e.g. online, on the radio, in business establishments); the retransmission of distant television and radio signals; the reproduction of television and radio programs by educational institutions in specific circumstances; the making of private copies of music; and any other field where the Board is asked by a collective management society to set a tariff for the use of a copyrighted work.

In December 2016, the Senate Committee on Banking, Trade and Commerce released recommendations for the Board aimed at “removing the delays that have been longstanding irritants to artists and businesses.”^{footnote 3} Broad public consultations on options to reform the Board were held by Innovation, Science and Economic Development Canada (ISED), Canadian Heritage (PCH) and the Board in September 2017. Almost 60 submissions^{footnote 4} were received from individuals and organizations, many of whom are regular participants in Board proceedings. They reflected overwhelming support for modernization of the Board’s rules and practices, and the imposition of timelines for the rendering of Board decisions. In June 2019, in its report in the context of the Government’s five-year statutory review of the Copyright Act,^{footnote 5} the Standing Committee on Industry, Science and Technology (INDU) attested to the importance of improving the efficiency and timeliness of Board operations and practices.

Following these reports and consultations, the Minister of Innovation, Science and Industry and the Minister of Canadian Heritage introduced amendments to the Copyright Act to clarify, among other things, expectations toward the Board in regard to the timeliness of its decision-making. These legislative changes came into effect on April 1, 2019. On December 4, 2020, the Time Limits in Respect of Matters Before the Copyright Board Regulations also came into effect, setting out broad timelines for certain aspects of Board procedures, including the period within which the Board must identify whether a tariff will require a hearing process; the period within which the Board must render a decision following parties’ final oral or written submissions to the Board; and the period within which the Board must render a decision in cases where no hearing is held.

Objective

The Copyright Board Rules of Practice and Procedure (the Rules) implement the new statutory framework and modernized mandate set out in the amended Copyright Act; address specific issues raised by the INDU Committee and by stakeholders regarding the timeliness, efficiency, predictability and transparency of Board procedures; and detail how the Board will sequence its proceedings to be able to respect the timelines for decision-making introduced in the Time Limits in Respect of Matters Before the Copyright Board Regulations. They provide an important deliverable in relation to the Government of Canada’s commitment to modernize the Board, as articulated in its Intellectual Property (IP) Strategy and in the Creative Canada Policy Framework.

The Rules create an operational framework for the Board aimed at helping rights holders get remunerated for their work and users get access to copyright protected creative content in a fair, equitable, transparent, timely and predictable manner.

Description

The Rules apply to all Board proceedings for tariff setting and for applications to set royalty rates in particular cases.

The Rules sequence the tariff-setting process at the Board in a manner that it will help the Board respect the timelines imposed by the Time Limits in Respect of Matters Before the Copyright Board Regulations. They establish clearer rules and practices that will address the timeliness, efficiency, predictability, and transparency of Board procedures; and ensure that parties have the required information to make informed choices about their participation in Board proceedings.

The Rules replace the existing Model Directive, provide clearer guidance to parties on how to engage with the Board, and establish specific requirements for their participation in tariff-setting proceedings. These requirements relate to the timing of filing and service of documents, the format of documents and exhibits, as well as the confidentiality and choice of language of communication.

Finally, the Rules permit the Board to vary the rules, in particular to deal with matters informally and expeditiously, to allow for meaningful participation, and to deal with special circumstances.

Notices of grounds

The Rules require a collective management society to provide an explanation of the grounds (notice of grounds) for its tariff proposal within seven days of filing. Objecting parties also need to include more robust information on the nature of their objections by filing a notice of grounds for objection. The Rules further provide a time limit of 14 days after the filing of the notice of grounds for objection for the collective management society to file a reply.

Joint statement of issues

For proposed tariffs where an objection has been filed, the Rules introduce the requirement to file a joint statement of issues within 90 days of commencement of proceedings or when ordered by the Board. If parties cannot agree on the joint statement of issues, the Rules stipulate that they shall file separate submissions with the Board, identifying the issues on which they cannot agree, and their positions on those issues.

Case management

The Rules lay out the details of the Board’s case management authority set out in section 66.504 the Copyright Act. The Rules clarify how the Board may use its case management authority as defined under subsection 66.6(1.1) of the Copyright Act. Case management could be used to keep parties on track in terms of proceeding schedules by establishing timelines and a framework for interrogatories and questions around methodology and data gathering; clarifying criteria for procedural exceptions or deadline extensions; and specifying the type of information required to present cases efficiently. The Rules also allow the case manager at the Board to issue binding orders on procedure following a case management conference and other various situations, where appropriate.

Treatment of information and evidence

The Rules require that documents be filed by parties electronically, unless otherwise provided. This practice was previously covered by a practice notice.

The Rules also provide guidance on how the Board generally considers the confidentiality of information provided in a proceeding, as well as the conditions attached to the use of expert witness evidence provided by parties or independently by the Board.

Non-party participation in Board proceedings

The Rules address the current lack of clarity with respect to non-party participation (e.g. an individual consumer or creator) in Board proceedings by explaining the means by which any interested person can request leave to intervene in a proceeding. They also standardize the way these requests are generally considered by the Board.

Legal certainty and flexibility

The Rules apply to all relevant proceedings, including those that have started before their coming into force. However, they do not invalidate any actions taken in accordance with the Model Directive up to that point.

Regulatory development

Consultation

Early consultations with collective management societies and user groups who frequently appear before the Board took place on March 17, June 10, June 11, and June 16, 2021. Groups were kept small to facilitate exchanges. Sessions were offered in both official languages. A number of changes were made to the proposed Rules following these sessions to further reduce the overall potential burden on parties, clarify certain procedures, and facilitate access to justice.

A number of draft provisions that would have required collective management societies to serve documents on a very significant number of persons, as well as some requirements in the Notice of Grounds for Proposed Tariff and in the Statement of Issues were removed. The requirement to file a Statement of Issues in certain situations was also removed.

Clarifications were also made to the proposed Rules to better explain how confidential information would be treated, and to address the various sequences in which parties may file case records and letters of comment.

The proposed Rules were then published in the Canada Gazette, Part I, on June 18, 2022, followed by a 30-day comment period. Seven submissions were received from the following organizations which, together, represent a majority of parties who appear regularly before the Board:

• the Society of Composers, Authors, and Music Publishers of Canada (SOCAN);
• Re:Sound - Music Licensing Company;
• the Canadian Broadcasting Corporation (CBC);
• Artisti (Société de gestion collective de l’Union des Artistes Inc.);
• the Canadian Musical Reproduction Rights Agency (CMRRA);
• CONNECT Music Licensing; and
• a joint submission from Bell Canada, the Canadian Communication Systems Alliance, Eastlink, Rogers Communications, Shaw Communications, TELUS Communications and Quebecor Media (collectively called “the BDUs” or “Broadcasting Distribution Undertakings”).

In determining whether to make changes based on comments received, the Board considered whether they align with the purpose of the proposed Rules. None of the submissions requested redrafting or removal of specific provisions. Most comments focused on seeking clarification of language in certain provisions, in particular regarding the filing and service of documents. The Board accepted most of these requests, and minor changes were made to the Rules accordingly. This includes a technical change to clarify that an electronic message is presumed to be served on the day set out in the message. However, if the time set out in the message is after 17:00, Ottawa time, the message will be presumed to be served on the next business day. The Board also clarified that a document served by email is presumed to have been received on the date and at the time that the email was sent.

At a substantive level, some submissions requested that more detailed procedures be added with respect to the appointment of independent experts by the Board. After consideration, the Board determined that the requested level of detail leaves the Board with too little flexibility in exercising its discretion on a particular case. Given that the Board has rarely appointed an independent expert, there is insufficient experience to draw from to understand the impact of narrowing the provision.

Modern treaty obligations and Indigenous engagement and consultation

While standardizing and clarifying procedures through regulation will make them more generally accessible to the public, no particular impact on modern treaty obligations and Indigenous Peoples is anticipated.

Instrument choice

Currently, the Board relies on its Model Directive to provide guidance on its procedures. The Model Directive has not proven to be an effective tool in increasing predictability and ensuring compliance by parties since rules are established on a case-by-case basis. The new mandatory requirements included in the Rules apply across all cases and require compliance, supporting a more predictable, standard, and clear process for all participants and potential participants in Board proceedings. For this reason, the regulatory option is the preferred and selected option.

Regulatory analysis

Benefits and costs

The Rules will benefit the Board’s stakeholder community, including collective management societies, various user groups, such as industry or trade associations of users, and Canadian private companies. Fixed timelines, document requirements, early resolution of issues and, as a result, more targeted interrogatories, will help parties plan their engagement activities with the Board more efficiently as they will know what to expect and how to meet Board expectations. This could be particularly beneficial to parties relying on external legal counsel to represent them in Board proceedings, and small parties with more limited resources. Some cost savings could also happen as a result of electronic filing requirements. The Board already encourages electronic filing through a practice notice, but the Rules make this practice compulsory, unless an exception is granted.

For the Board itself, the main benefit of the Rules is that it will receive information from the parties needed for its analysis at the beginning of proceedings, thus limiting requests to parties later on for additional information. Board staff will be able to provide Board members with complete files by the time the deliberation period begins. Finally, standardized methods of collecting information from the parties through the use of electronic templates and forms will help the Board modernize its electronic information management system, provide easier access to information, and increase overall transparency of its activities.

The costs of the Rules are expected to be less than $1 million annually. While parties will be required to provide information earlier on in proceedings, the amount or type of information required from parties will be the same as under the current Model Directive.

To support parties as they learn and adapt to the new requirements, the Board will incur costs to develop a series of templates and organize information sessions to ensure that its intent and expectations are well understood. The Board also intends to further enhance its case management capacity and maximize the use of its website to provide guidance to stakeholders and the public on how to engage with the Board.

It should be noted that, although the Rules may, in certain cases, lead to shorter procedural steps up to the deliberation phase, the overall length of proceedings up to the deliberation phase can vary between files based on factors beyond the Board’s control. Reasons for proceedings taking longer than anticipated include cases when parties ask the Board to suspend proceedings for extended periods while they negotiate a settlement; difficulty in obtaining data and evidence, especially when dealing with new types of uses of copyrighted works (e.g. online streaming); complicated repertoire studies led by parties; unavailability of experts; and decisions from upper Courts on matters affecting the interpretation of the Copyright Act or creating legal precedents affecting the Board’s own legal analysis. As an independent administrative tribunal, the Board must also ensure that streamlined proceedings do not come at the detriment of procedural fairness.

Small business lens

Analysis under the small business lens concluded that the Rules will impact Canadian small businesses. Though some information requirements on parties to Board proceedings might increase, these requirements are not typical administrative or compliance activities as described in the Policy on Limiting Regulatory Burden on Business. As well, standardizing, streamlining, and clarifying procedures will make Board proceedings more accessible, benefitting all parties and small businesses in particular.

One-for-one rule

The one-for-one rule does not apply to the Rules, as they will not result in incremental administrative burden on businesses. While the Rules will impact the type of information required from the parties and the timing and format under which such information will need to be provided, the purpose of this information is to aid the Board in deciding, not for demonstrating compliance with the Rules.

Regulatory cooperation and alignment

The Rules are modelled after the rules of practice and procedure of a number of federal administrative tribunals that administer comparable proceedings, including those of the Canada Energy Regulator, the Competition Tribunal, the Canadian International Trade Tribunal, the Patented Medicine Prices Review Board, and the Canadian Radio-television and Telecommunications Commission.

While Canada is a member to a number of international treaties and agreements that include obligations with respect to copyright, the Rules have no linkage to them, as rules of practice and procedure in Board proceedings are not subject to any international agreements or obligations.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for the Rules. While standardizing and clarifying procedures through the Rules will make them more generally accessible to the public, they will not have any potential differential or adverse outcomes to Canadians based on distributional factors such as gender, age, education, language, geography, culture, and income.

Implementation, compliance and enforcement, and service standards

Implementation

The Rules come into force on the day they are registered.

As part of the implementation of the Rules, information material, including templates, have already been made available on the Board’s website to help parties understand the timelines, the requirements, and the format in which input to the Board will need to be provided. Technical workshops may also be organized for parties that are less familiar with Board processes in general, and a user’s guide on the Rules will be published in the spring of 2023. Following implementation, the Board will continue to offer guidance to parties via its registry staff, as required, and seek suggestions and comments, including on templates and other guidance documents.

In 2022–2023, the Board reviewed and updated all its performance measures to better reflect its new legislative and regulatory framework and its commitment toward transparency and efficiency. The new Board Performance Management Framework establishes new targets for respecting timelines and ensuring efficiency and transparency of its tariff-setting proceedings, among others. The Board reports on its performance to Parliament, through the Minister of Innovation, Science and Industry.

Compliance and enforcement

Section 66.7 of the Copyright Act gives the Board the rights and privileges as are vested in a superior court of record, including with respect to matters that are covered by the Rules. Furthermore, “[a]ny decision of the Board may, for the purpose of its enforcement, be made an order of the Federal Court or of any superior court and is enforceable in the same manner as an order thereof.”^{footnote 6} As per subsection 66.91(2) of the Copyright Act, the Board also has the authority to adapt, restrict or exclude the application of any provision of the Rules.^{footnote 6}

Parties are expected to respect the Rules from the time they are in effect and will be able to seek guidance and advice from the registry staff on how to comply with the Rules, on a continuous basis.

Service standards

Considering that the Rules articulate the precise sequence, procedural steps and timelines associated with any given tariff-setting proceeding, as well as create various requirements for both the Board and the parties, developing additional service standards is not necessary.

Contact

Lara Taylor
Secretary General
Copyright Board of Canada
Email: secretariat@cb-cda.gc.ca