Mario Bouchard: What’s new at the Copyright Board of Canada?

Mario Bouchard: What’s new at the Copyright Board of Canada?

On March 23, the Toronto Intellectual Property Group and IP Osgoode hosted Mario Bouchard, General Counsel for the Copyright Board of Canada, as a guest speaker at a dinner event in downtown Toronto. Mr. Bouchard focused his discussion on four issues: the role of the Board, copyright fragments, factors causing the Board’s increased workload, and the increasing number of collectives. The talk ended with a number of questions from audience members, composed of practitioners, academics, industry stakeholders, and students.

Mr. Bouchard first reminded everyone that the Copyright Board is not a court of law. Despite this, it has had to make a variety of definitive rulings with substantively legal implications. Such past and current decisions include: whether a sports game is a work, when copies made by teachers for students constitutes fair dealing, and whether there is communication of a work if a music file is downloaded but never listened to. Though upon quick empirical inspection there seemed to be relatively little evolution and introspection with respect to copyright matters within the court system, the Board has spent a considerable amount of time revising and fine-tuning its interpretation of copyright law in order to apply it to novel issues.

Regarding copyright fragments, Mr. Bouchard admitted that these can be pesky and complicated to navigate through. Giving the example of playing a song on a radio, there are potentially six separate rights involved, and so it is possible for a user to face six separate proceedings. The Board has attempted to consolidate matters, but there is of course only so much it is able to do since part of this fragmentation has been maintained by the nature of the different collectives. Additionally, separate rights have come into being because users prefer to pay for only what they are using.

Considering the workload of the Board, it was noted that it has doubled since 1997, when Parliament gave it additional responsibilities. However, Mr. Bouchard went on to say that this increase has also been caused by changes in technology and business strategies in addition to and in combination with legislative mandates. An example of a tariff due primarily to technological advances is the satellite radio tariff, which would not exist without satellites. Tariffs paid by radio stations for copying music onto their servers are more related to the business decision to carry out such reproductions.

Finally Mr. Bouchard wrapped up his speech with his personal belief that the relatively large number of collectives in Canada (over 30) is not as big a problem as some may believe. One reason given was that even though there may be multiple collectives administering a single right, users are not exposed to any complications since this same right is only manifested as a single tariff. In fact, it may be wise to allow new collectives to form with little regulation so that the issues of a specific group can be more effectively considered. It would greatly reduce a group’s bargaining power within an established collective, when they are vying for a fair portion of royalties, if it was difficult for them to break away from the established collective to form their own.

After the speech, the questions from the audience allowed Mr. Bouchard to further explicate some of his thoughts. The ensuing conversation saw him speaking about the authority of the Copyright Board, where he said that the reality is that many more copyright issues arise before the Board than the courts, and these issues are rarely contained solely within the sphere of pure copyright. He stated that “we’re not the experts, but we don’t just take what the experts give us”, and he also noted that the Supreme Court gave deference to the Board’s findings in the SOCAN decision as an example of the Board’s authority on factual determinations. However, both questions of fact and law are quite important.

Regarding how exactly the Board makes its findings, Mr. Bouchard was asked whether it simply applies Canadian law as best it can, whether it considers other jurisdictions, and whether it also focuses on policy issues. The response was that Canadian law, both legislation and jurisprudence, is heavily considered. The effects of rulings in other jurisdictions are looked at, but differences in the markets and cultures must be accounted for. Finally, some decisions are clearly informed by policy, and the Board must consider the current regime and its stated goals. Its job is to implement Parliament’s decisions, so if it is told that a levy must be created then it will not question the rationale or any political underpinnings of the decision, but will rather only focus on determining what that levy should be. Mr. Bouchard also felt that there should be no exact explanation of why particular figures are eventually chosen, since there are many soft factors that are weighed when reaching a conclusion.

At times colourful, the dialogues involving audience members were both informative and direct, and were somewhat reflective of the current state of divergent views that are sometimes more vociferously advocated in the plethora of other Canadian forums dealing with copyright matters. For news about the Copyright Board’s latest developments, see its website located here.

(Update: March 31, 2009, 2:25pm - The text above has been updated to correct the erroneous statement that Mr. Bouchard believed the SOCAN decision relied on the Board’s determination of legal questions. Mr. Bouchard specifically indicated that the Supreme Court accepted the Board’s findings of fact.)