Copyright Board says it is aware of ‘problematic’ delays

The Copyright Board of Canada says it is aware of problematic delays in its proceedings and that reducing its decision-making process to a timeline of nine months is a realistic target. “The delays, not only in our decisions but with the entire process, are problematic, for sure,” Gilles Mcdougall, secretary general of the board, told The Wire Report in an interview. He said the board is aware of delays in its tariff proceedings, “especially those in regard to Internet uses.” The board has been faced with a shortage of resources coupled with more tariff applications than ever dealing with increasingly complex technological issues, Mcdougall said. “Not only have we seen a major increase in the number of tariffs filed, but also in their complexity, from a technology point of view, a jurisdictional point of view, from a legal point of view, and certainly from an economic point of view. It's now much, much more complex than it was before,” he said. Mcdougall spoke about the delays following the publication of a story in The Wire last Friday that said the board is feeling pressure from industry and user groups to speed up its decision-making process. Sources noted that it often takes more than a year for the board to publish a tariff decision following a hearing, and that a tariff proceeding, from the time of application to a decision, typically takes several years. Tariff proceedings at the board establish the royalties companies and other users must pay to distribute and reproduce copyrighted works. The board's 2011-2012 report on plans and priorities says that, in an effort to reduce delays, it is setting a decision period target of 12 months for the next fiscal year “with a complying percentage of 70 per cent.” Mcdougal said he is confident the board will meet the target. He added that, in the following years, the board hopes to further reduce the 12-month timeline, and that a target of nine months is realistic. Observers and critics have pointed out that the board's 2009 decision on the royalties that primary and secondary schools must pay for photocopying arrived five years after copyright collective Access Copyright filed the original tariff. Mcdougall said many of the delays are out of the board's control, and that proceeding took five years because the parties wanted to conduct a major survey of elementary and secondary schools to collect data on photocopying. It took years to prepare and run the survey and analyse the results, he said. “The parties asked for that because they thought it was useful and certainly the board used that survey in setting its tariff,” Mcdougall said. Proceedings can also be delayed when the board is asked to step into disputes between parties about the nature and relevance of evidence and responses to questions. Copyright collectives and user groups can also cause delays when they propose tariffs to the board but say they don't have the resources or desire to start a tariff proceeding. An official tariff proceeding does not kick off until parties file their objections to the tariff proposal, and collectives are sometimes under pressure to file tariffs that they do not necessarily want to move forward on right away, he said. “Even though they've submitted a tariff, some collective societies will say, ‘We're not quite ready. We were obligated to propose a tariff.’” Mcdougall said a recent boost in funding has helped create additional positions at the board for two economists and one lawyer. The board has already hired two new economists, he said, one of whom left. The board is now searching for a replacement. Another lawyer will also be added the board's existing two-person legal team, Mcdougall said, and the agency is looking to fill a position for director of research. The board's 2009-2010 estimate says it had planned spending of $2.744 million for 2008-2009, which increased to $3.054 million for 2009-2010 and subsequent years. The Copyright Board had approached the government and explained that it was under-resourced, Mcdougall said. “It's never easy to get money, as you can imagine. You have to convince quite a number of people.” He added that, right now, there is enough work to double the board's staff and keep everyone working full-time. Mcdougall said a lack of resources was illustrated about two years ago when it held four hearings over the span of about two months, creating too much work for too few people and resulting in a backlog. Hearings will continue to be scheduled several months apart, he said, and parties should not expect more than two-to-four hearings per year. sdoyle@thewirereport.ca

Copyright Board says it is aware of ‘problematic’ delays

Broadcast | August 15, 2011

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