By Sepal Bonni

Copyright Board Establishes Formal Rules of Practice and Procedure

On March 1, 2023, the Copyright Board (the “Board”) published its new Rules of Practice and Procedure (the “Rules”). The intention behind formalizing the Rules is “to provide more efficient tariff approval processes” and “to offer parties and the public reliable direction on how to participate in such Board proceedings, and what to expect when they do”, as per a publication on the regulatory body’s website. This formalization follows a public consultation period where stakeholders and the general public were invited to comment on the topic. According to the Board, the majority of comments were worked into the new Rules. Charities and not-for-profits often use licensed works, like music and visual art, for promotional material and publicity campaigns. As users of licensed media, these organizations are stakeholders who have an inherent interest in the Board’s process.

The Board has a great deal of leeway in modifying the Rules as the principle of fairness may require. Barring such a modification, parties must follow the rules as stated. However, a failure to follow the rules by a party does not invalidate a proceeding or document.

The Rules outline what specific information must be submitted along with a proposed tariff or related objection. Collective societies are organizations which allocate permission to use works for various copyright owners. For example, a collective society will grant permission to use a set of songs to a radio station for a fee. Collective societies will be required to provide notice of grounds for a tariff proposal which will describe uses under the proposal and the basis of the proposed royalty rate. This will allow interested parties to have substantial information with which to file objections, which will also be required to meet a level of informational detail. The intention of this is to streamline the proceedings by allowing the parties to make the best possible case for their arguments, as well as providing the Board with adequate information to make decisions.

A joint statement will be mandatory before proceedings begin, which will allow the parties to agree on any specific issues which are not contentious. Anything not agreed upon will be documented in a Statement of Issues. Principles of case management will be used when appropriate, so that an assigned case manager can issue orders, convenience case management conferences and consider/resolve issues of procedure. If the parties agree on royalty rates and conditions, a joint request can be submitted to the Board, along with supporting evidence for the proposal. Appropriate measures for the discovery process, including interrogatories, can be determined by the case manager. The content of case records and the processes dealing with them are formalized by the Rules. The procedure of oral hearings before the board are also formalized. 

The treatment of evidence in hearings has been formalized, including the treatment of confidential information. Unless something is designated as confidential or highly confidential, it will be placed in the public record. Standards to ensure the relevancy of expert witness and their reports are included in the Rules.

The Rules allow an individual (but not collective societies) to request to be added to a proceeding as an intervener. The Board will evaluate the relevant interest the person has in the proceeding and whether they stand to provide relevant or new information. This is balanced against a consideration of prejudice against the parties, or any potential interference with the proceedings. The Board will also decide the degree to which the intervener is allowed to participate. Any person may also submit a letter of comment regarding any proceeding, which will be provided to the parties and the public. Parties may respond to a letter of comment.

The Rules will apply to proceedings commenced both before and after the Rules come into effect, but proceedings commenced before the coming into force of these rules are not invalid for noncompliance. The Rules came into force on the day they were registered.

The formalization of the Rules is significant for any stakeholder in the Canadian media industry. The Board approves tariffs for content managed by collective societies, grants licenses for use of works with unknow owners, and arbitrates disputes between collective societies and users. For media producers and collective societies, the Board can determine the compensation they receive from the works they own rights to. For media users, the Board can determine the price they pay for using such works. As charities and not-for-profits may wish to use artistic works for promotional or advertising initiatives, the new Rules set out the procedure they will have to go through should they ever become a party to a dispute regarding the licensing.

​Read the April 2023 Charity & NFP Law Update