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December 12, 2016

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Law Times • December 12, 2016 Page 3 Copyright board overdue for review, say lawyers BY DALE SMITH For Law Times A Senate committee re- port is calling for a complete review of the Copyright Board, say- ing decisions on tariffs are tak- ing an average of seven years to complete. Lawyers say the review, which would potentially happen when the Copyright Act comes up for review next year, is long overdue. "This recommendation is welcomed from copyright prac- titioners, copyright users, copy- right owners, and it's certainly not a surprising one," says San- geetha Punniyamoorthy, a part- ner with DLA Piper (Canada) LLP in Toronto. Punniyamoorthy says the re- port by the Senate banking and trade committee highlights that what is needed is not just a re- view but an urgent review. Statistics compiled by Uni- versity of Ottawa law professor Jeremy de Beer, included in the Senate report, show that it cur- rently takes an average of seven years between filing and the board rendering its decision. The report's sole recommen- dation is that "the forthcoming, five-year statutory review of the Copyright Act should include a thorough, in-depth examina- tion of the Copyright Board of Canada's mandate, practices and resources." The report includes mention of the fact that there is debate among the copyright legal com- munity as to whether the board has enough resources to do its job or if the problem of delays is because of broader problems with its mandate. Punniyamoorthy says that measures such as case manage- ment and deadlines would be useful for keeping things on track, but she isn't sure that the lack of full-time staff on the board is a factor. "If it is an issue of resources, then the onus is on the board to raise that front and centre," says Punniyamoorthy. "In all of the discussions that we've seen from the working group that the board set up, it's a factor, but it doesn't seem like it's the key factor." According to de Beer, even before the resource question can be addressed, the board's man- date needs to be taken into con- sideration. "The board is part of a much broader system of copyright ad- ministration, including collec- tive administration and admin- istrative law," de Beer tells Law Times. "If there are problems, the problem may not be with the board per se, but the system in which the board is a part. "That's not to say that there are no problems with the board and its own procedures — sim- ply that those are far from the only problems, let alone the root problems." He notes that the stat- utory scheme has become more complex with each round of re- forms, starting in the late 1980s, right up to the recent reforms in 2012, with little thought given to the administrative implications of those changes. According to de Beer, Cana- da has more collective societies than any other country in the world that require regulation lest they charge monopoly prices. These resourcing views are contradicted by D. Lynne Watt, partner with Gowling WLG and counsel for the Society of Com- posers, Authors and Music Pub- lishers of Canada, or SOCAN, for whom she has appeared be- fore the board on numerous oc- casions. "It is under-resourced for the job that it now has to do," says Watt. "There has been an exponen- tial explosion in the number of tariffs that it is now called upon to review, as well as agreements. "There are different rights and new copyrights that they have to look at that they never had to before, so if you compare it to when the board was cre- ated in 1990, it's a really different playing field now. "They're looking at a lot more stuff and the economic value of the tariffs that they're certifying is huge." Watt says there are probably ways to make it more efficient, but what has been imposed on them by the decisions of the courts and the kinds of analysis that they are required to do takes a lot of time and resources. There is an inherent tension between protecting rights and trying to get efficiency. Watt also disagrees with the Vancise comparison with the Su- preme Court of Canada timeline for decisions, calling it unfair. "The Supreme Court of Can- ada is usually deciding fairly narrow issues of law," says Watt. "The Copyright Board is of- ten looking at very large cases with multiple parties in front of them, filing voluminous records and having long hearings. "The reality is that there is often so much money at stake in the hearings that one side or the other is inevitably going to have them reviewed." In terms of the broader statu- tory review, de Beer says provi- sions around fair dealing, par- ticularly in the digital environ- ment, will need to be looked at by Parliament. "I hope that the focus on collective administration and tariff-setting procedures does not detract from the need to look at those other issues, such as the problems we're now see- ing with the implementation of the WIPO [World Intellectual Property Organization] Inter- net treaties, and in particular around fair dealing where digi- tal locks are involved," says de Beer. LT NEWS Sangeetha Punniyamoorthy says copy- right practitioners, copyright users and copyright owners all welcome a complete review of the Copyright Board. SAVE 15% Use Coupon Code YOUSAVE15 before December 15 th This February, discover innovative ideas, engage in lively discussions and learn fresh approaches to the challenges facing today's lawyer – all at Canada's largest legal CPD event! FEBRUARY 7-11, 2017 Untitled-4 1 2016-12-06 2:56 PM Tel: 905-841-5717 THE PROOF IS IN THE PRECEDENTS. Jury Verdict (Nov 2016) Elder v. HCSW Property Management et al. Jury Verdict (May 2016) Derry v. The Cadillac Fairview Corporation SLIPPERY WALKWAY CASE? Consider referring your client to us. Tim Boland Darcy Romaine Untitled-2 1 2016-12-08 9:24 AM

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