Copyright Board of Canada

 
 

2012-2013

 
 

Departmental Performance Report

 
 

 

Minister's Message

Minister’s Message I am pleased to report on the Industry Portfolio's key activities for 2012-13.

During this period, the Portfolio continued to develop and recruit leading research talent through programs administered by the federal granting councils. It also took significant steps to improve commercialization outcomes through the transformation of the National Research Council into an industry-focused research and technology organization. This was complemented by reinvestments in programs such as the College and Community Innovation Program and the Centres of Excellence for Commercialization and Research.

Specifically, the Copyright Board of Canada continued to hold hearings, issue decisions, certify tariffs and deliver licences related to the public performance and reproduction of music, as well as the reproduction of literary works and private copying. The Board will continue to support industry and help enforce Canada's copyright regulatory regime with efficiency and effectiveness.

Moving forward, the Industry Portfolio will continue to exercise fiscal responsibility while delivering on government priorities to support jobs and economic growth. Portfolio agencies will continue to play key roles in encouraging collaboration between the research community and the private sector; strengthening the manufacturing sector to sustain and attract globally competitive industries; and bringing forward the government's response to the Review of Aerospace and Space Programs and Policies to maintain Canada's leadership position in those areas.

It is my pleasure to present the 2012-13 Departmental Performance Report for the Copyright Board of Canada.

James Moore
Minister of Industry

Section I: Organizational Overview

Raison d’être

The Board is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works, when the administration of such copyright is entrusted to a collective-administration society. The Board also has the right to supervise agreements between users and licensing bodies and issues licenses when the copyright owner cannot be located.

Responsibilities

The responsibilities of the Copyright Board under the Copyright Act (the "Act") are to:

  • certify tariffs for
    • the public performance and the communication to the public by telecommunication of musical works and sound recordings;
    • the doing of any protected act mentioned in sections 3, 15, 18 and 21 of the Act, such as the reproduction of musical works, of sound recordings, of performances and of literary works; and,
    • the retransmission of distant television and radio signals or the reproduction and public performance by educational institutions, of radio or television news or news commentary programs and all other programs, for educational or training purposes.
  • set levies for the private copying of recorded musical works;
  • set royalties payable by a user to a collective society, when there is disagreement on the royalties or on the related terms and conditions;
  • rule on applications for non-exclusive licences to use published works, fixed performances, published sound recordings and fixed communication signals, when the copyright owner cannot be located;
  • examine agreements made between a collective society and a user which have been filed with the Board by either party, where the Commissioner of Competition considers that the agreement is contrary to the public interest;
  • receive such agreements with collective societies that are filed with it by any party to those agreements within 15 days of their conclusion; and,
  • set compensation for formerly unprotected acts in countries that later join the Berne Convention, the Universal Convention or the Agreement establishing the World Trade Organization.

Finally, the Minister of Industry can direct the Board to conduct studies with respect to the exercise of its powers.

Strategic Outcome and Program Alignment Architecture

O Copyright Board of Canada
SO Fair decision-making to provide proper incentives for the creation and use of copyrighted works
P Copyright Tariff Setting and Issuance of Licences SP No Sub programs
SO The following program supports all strategic outcomes within this organization
P Internal Services

Organizational Priorities

Priority Type1 Strategic Outcome
Ensure timely and fair processes and decisions Ongoing Fair decision-making to provide proper incentives for the creation and use of copyrighted works
Summary of Progress

Why is this a priority?

The requirement to have timely decisions is expressly stated in the Act: the Board is to certify and publish tariffs "as soon as is practicable". The requirement to have fair processes and decisions is implicit: the Act gives the Board the powers, rights and privileges of a superior court; as such, the Board is required to follow the principles of natural justice which, taken together, ensure both fair processes and fair outcomes.

How did we meet the priority

In 2012-13, the Board took several steps which resulted in a reduction of the regulatory burden. For instance, the Board combined hearing processes for the tariffs of SOCAN, CSI and SODRAC pertaining to online music services. The Board also initiated a single hearing process in connection with five different tariffs involving six different collective societies in relation to commercial radios. This contributed to cost savings for the participants.

The Board gathers data on the number of months between the date when a particular tariff proceedings is complete, and the date when the tariff is certified. In the Report of Plans and Priorities (RPP) for 2012-13, a target of 12 months was set, with a complying percentage of 70 per cent.

Thirteen decisions were rendered by the Board during fiscal year 2012-13, of which seven were final decisions, five were interim decisions, and one was a decision on an application to vary. Of these 13 decisions, 11 (or 85 per cent) were issued within 12 months of completion of the proceedings. The two decisions not rendered by the Board within the 12-month deadline related to a complex tripartite arbitration between SODRAC, CBC and Astral, as well as a SODRAC tariff heard at the same time. Hence, our target was successfully met.

In addition, pursuant to section 77 of the Act, the Board may grant licences that authorize the use of a published work, a fixation of a performer's performance, a published sound recording, or a fixation of a communication signal if the copyright owner cannot be located. The Board's objective with respect to this activity is to issue licences in a timely manner. Therefore, data is also gathered on the number of months between the date when a particular licence file is complete, and the date of issuance of the licence. In the RPP for 2012-13, a target of 45 days was set between the file completion date and the issuance of the licence, to be met in at least 70 per cent of the files.

Eight licences were delivered during fiscal year 2012-13. Seven of the eight licenses, or 88 per cent, were issued within 45 days. Our target was thus successfully met.

Priority Type Strategic Outcome
Advance the analytical framework for decisions and the regulatory processes for tariff-setting Ongoing Fair decision-making to provide proper incentives for the creation and use of copyrighted works
Summary of Progress

Why is this a priority?

The Board is required, under the Act, to give reasons for its decisions. In keeping with the modern principles of judicial review, the Federal Court of Appeal typically defers to the Board's expert understanding of the facts before it. The Board can only maintain this deference by constantly advancing its analytical frameworks.

How did we meet this priority

As a key tool in addressing the challenges of changing technology and the impact of global events, the Board is encouraging the active participation of its staff and Members in international initiatives, events and conferences. By discussing and comparing experiences across different countries, the Board can gain early warning of significant developments and their likely impacts on the Canadian situation.

Among the international conferences of copyright specialists which the Board Members and staff attended in 2012-13, the following are noteworthy: the Twentieth Annual Conference of the Fordham Intellectual Property Law Institute (New York, April 2012), the Annual Conference of the Association Littéraire et Artistique Internationale (ALAI) (Kyoto, June 2012), and the annual meeting of the Society for Economic Research in Copyright Issues (Washington, July 2012). The Board was also represented at numerous similar national meetings in Canada. The rationale for the Board's "screening" activities is to identify and assess industry trends.

Priority Type Strategic Outcome
Improve management practices Ongoing Fair decision-making to provide proper incentives for the creation and use of copyrighted works
Summary of Progress

Why is this a priority?

The Board needs to improve management practices on a continual basis, as any other Departments.

How did we meet this priority

The Board has updated its Human Resources Plan as this is an evolving document that needs to be reviewed to take into account changing priorities, and reviewed and updated its appointment policies to bring them in line with the requirements of the Public Service Employment Act. The Board has also continued to work and implemented its Performance Measurement Framework.

The Board continued to develop and implement key IM/IT initiatives in support of business development and enhancement activities.

The Board continued to progress on all public service renewal commitments that respond to challenges related to planning, engagement, recruitment, building capacity, and providing supportive human resource management architecture. Accomplishments include a more integrated, inclusive and horizontal approach to planning.

1 Type is defined as follows: previously committed to - committed to in the first or second fiscal year prior to the subject year of the report; ongoing - committed to at least three fiscal years prior to the subject year of the report; and new - newly committed to in the reporting year of the RPP or DPR. If another type that is specific to the department is introduced, an explanation of its meaning must be provided.

 

Risk Analysis

Risk Risk Response Strategy Link to Program Alignment Architecture Link to Organizational Priorities
Technology risk
  • Systematically monitor relevant journals, other publications and web sites, and to attend industry seminars and conferences.
  • Risk was identified in the 2012-13 RPP.
  • No modifications to the risk mitigation strategies.
Fair decision-making to provide proper incentives for the creation and use of copyrighted works. Advance the analytical framework for decisions and the regulatory processes for tariff-setting.
Reversal risk
  • Issue fair and equitable decisions
  • Risk was identified in the 2012-13 RPP.
  • No modifications to the risk mitigation strategies.
Fair decision-making to provide proper incentives for the creation and use of copyrighted works. Ensure timely and fair processes and decisions.
HR risk
  • Runs well-organized job competitions, designed to target a significant share of the pool of potential candidates;
  • takes measures to encourage a large number of applications;
  • creates a stimulating working environment conducive to a high retention rate among its employees.
  • Risk was identified in the 2012-13 RPP.
  • No modifications to the risk mitigation strategies.
Fair decision-making to provide proper incentives for the creation and use of copyrighted works. Improve management practices.
 

Among the most significant risks which the Board faces in achieving its strategic outcomes is the potentially disruptive impact of new technologies (i.e., in terms of how copyright material is utilized, distributed and monitored). The Board's approach to managing the technology risk is to systematically monitor relevant journals, other publications and web sites, and to attend industry seminars and conferences, as described before in this report.

The decisions the Board makes are constrained in several respects. These constraints come from sources external to the Board: the law, regulations and judicial pronouncements. Others are self-imposed, in the form of guiding principles that can be found in the Board's decisions.

Court decisions also provide a large part of the framework within which the Board operates. Most decisions focus on issues of procedure, or apply the general principles of administrative decision-making to the specific circumstances of the Board. However, the courts have also set out several substantive principles for the Board to follow or that determine the ambit of the Board's mandate or discretion.

A smaller risk, which the Board faces in achieving its strategic outcome, is reversal risk. While decisions of the Board are not appealable, they are subject to judicial review. The ability to schedule a number of cases in a year could be impaired if a case from a previous year were reversed on judicial review. The Board's principal strategy to mitigate this risk is issuing fair and equitable decisions.

There is always a risk of not being able to hire or retain the staff with the necessary technical expertise to achieve required results. To mitigate this risk, the Board runs well-organized job competitions, designed to target a significant share of the pool of potential candidates. The Board also takes measures to encourage a large number of applications. The Board also works at creating a stimulating working environment conducive to a high retention rate among its employees.

Summary of Performance

2012-13 Financial Resources - Total Departmental ($ thousands)
Total Budgetary Expenditures (Main Estimates) 2012-13 Planned Spending 2012-13 Total Authorities (available for use) 2012-13 Actual Spending (authorities used) 2012-13 Difference (Planned vs. Actual Spending)
3,118 3,118 3,199 2,509 609
 
2012-13 Human Resources (Full-Time Equivalents - FTEs)
Planned 2012-13 Actual 2012-13 Difference 2012-13
15 14 1
 

Performance Summary Table for Strategic Outcome and Program

Strategic Outcome: Fair decision-making to provide proper incentives for the creation and use of copyrighted works

Performance Summary Table for the Program: Copyright Tariff Setting and Issuance of Licences
($ thousands)

Program Total Budgetary Expenditures (Main Estimates 2012-13) Planned Spending Total Authorities (available for use) 2012-13 Actual Spending (authorities used) Alignment to Government of Canada Outcomes
2012-13 2013-14 2014-15 2012-131 2011-12 2010-11
Copyright Tariff Setting and Issuance of Licences 2,525 2,525 2,534 2,534 2,591 2,032 2,058 2,078 An innovative and knowledge-based economy
Strategic Outcome Sub-Total 2,525 2,525 2,534 2,534 2,591 2,032 2,058 2,078

1 In order to align with departmental authorities by Program, as presented in Vol. II of the Public Accounts, services provided without charge amounts for employer's contribution to employee insurance plans, such as the Public Service Health Care Plan and the Public Service Dental Plan provided by the Treasury Board of Canada Secretariat, accommodations provided by Public Works and Government Services Canada, Workers' compensation provided by Human Resources and Skills Development Canada and legal services provided by the Department of Justice are not to be included in this figure. This information is presented in Departmental Financial Statements only.

 
Performance Summary Table for Internal Services
($ thousands)
Internal Services Total Budgetary Expenditures (Main Estimates 2012-13) Planned Spending Total Authorities (available for use) 2012-13 Actual Spending (authorities used)
2012-13 2013-14 2014-15 2012-13 2011-12 2010-11
Sub-Total 593 592 594 594 608 477 483 488
 
Total Performance Summary Table
($ thousands)
Internal Services Total Budgetary Expenditures (Main Estimates 2012-13) Planned Spending Total Authorities (available for use) 2012-13 Actual Spending (authorities used)
2012-13 2013-14 2014-15 2012-13 2011-12 2010-11
Total 3,118 3,118 3,128 3,128 3,199 2,509 2,541 2,566
 

Expenditure Profile

Departmental Spending Trend

Expenditure Profile

Actual spending has averaged $2.54 million for the past three years, with 2010-11 being about 1 per cent above that figure and 2011-2012 being about 1 per cent below that figure. These fluctuations are very small and do not represent a trend. Small changes of $20,000 to $30,000 per year can be explained by more or less purchases of materials (computers, furniture, supplies), and more or less trips away from the Board.

Estimates by Vote

For information on the Copyright Board of Canada's organizational Votes and/or statutory expenditures, please see the Public Accounts of Canada 2012 (Volume II)i. An electronic version of the Public Accounts 2012 is available on the Public Works and Government Services Canada's website

Strategic Environmental Assessment

The Copyright Board of Canada is in compliance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals.

Section II: Analysis of Programs by Strategic Outcome

Strategic Outcome

The Board's strategic outcome is to ensure fair decision-making to provide proper incentives for the creation and uses of copyrighted works. The achievement of this outcome relates to innovation, which is a main source of competitive advantage in all areas of economic activity.

The use and re-use of cultural and entertainment content (such as musical and audio-visual works) have become widespread with the advent of new media and online services, new playback and editing technologies and new uses in conventional media. These matters relate to some of society's most complex and contentious issues, including the downloading of content over the Internet using file-sharing software and the proliferation of duplication technologies which have the capability to make digital copies. At the same time, new opportunities for streaming video and audio files, whether interactively, semi-interactively, or passively have emerged. Personal video recorders and other similar devices used in conjunction with television sets have begun to blur lines between the broadcasting sector and the entertainment rental/purchase sector. Personal digital audio recorders have the capacity to store entire libraries of music, literally thousands of songs. It is in this environment that the Board must operate to achieve its strategic outcome.

The Copyright Board of Canada recognizes the need to ensure an effective and efficient copyright regulatory regime in order to attain the maximum productivity in those sectors that create and use copyrighted works. Further, the performance of the Copyright Board will promote a fair and competitive marketplace as well as reasonable opportunities for Canadian firms to export copyright protected goods and services in the music, for content creation and programming areas, as well as for the broadcasting, publishing and entertainment industries.

Programs

Copyright Tariff Setting and Issuance of Licences

This activity is in direct relation to the Board's mandate, the first part of which is to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works, when the administration of such copyright is entrusted to a collective-administration society. This part of the mandate is delivered through the setting of copyright tariffs.

The second part of the Board's mandate is to issue licenses when the copyright owner cannot be located.

Program: Copyright Tariff Setting and Issuance of Licences
Expected Results Performance Indicators Targets Actual Results

Fair and Equitable Tariffs and Conditions

  1. Percentage of tariff decisions published within 12 months
  2. Percentage of licences issued within 45 days
  3. Level of satisfaction of stakeholders

70% of tariff decisions will be published within one year

70% of licences will be issued within 45 days

70% satisfaction rate

85% of tariff decisions were published within one year

88% of licenses were issued within 45 days

Not measured quantitatively in 2012-13

 
2012-13 Financial Resources ($ thousands)
Total Budgetary Expenditures (Main Estimates) 2012-13 Planned Spending
2012-13
Total Authorities (available for use)
2012-13
Actual Spending (authorities used) 2012-13 Difference 2012-13
2,525 2,525 2,591 2,032 493
 
2012-13 Human Resources (Full-Time Equivalents - FTEs)
Planned 2012-13 Actual 2012-13 Difference 2012-13
12 11 1
 

Performance Analysis and Lessons Learned

1. Public Performance of Music

The Board held one hearing, related to Re:Sound Tariffs 8.A and 8.B (Simulcasting and Webcasting; Semi-Interactive Webcasting), and issued five decisions:

  • On May 25, 2012, the Board certified, pursuant to an agreement with the Objectors, a tariff for recorded music to accompany live events;
  • On June 30, 2012, the Board certified various SOCAN tariffs;
  • On July 6, 2012, the Board certified a tariff for recorded music accompanying fitness activities, setting a flat rate for fitness classes;
  • On October 5, 2012, the Board certified a tariff for online music services; and,
  • On January 18, 2013, the Board denied an application to vary a tariff related to Ringtones and Ringbacks.

2. Reproduction of Musical Works

Three decisions were issued by the Board:

  • On November 2, 2012, the Board certified SODRAC Tariff 5, relating to the reproduction of musical works in cinematographic works;
  • On December 20, 2012, the Board issued an Interim Decision on SODRAC Tariff 5, which quashed the November 2 Tariff and reopened the file for reconsideration;
  • On December 21, 2012, the Board partly rejected CAB's application for an interim decision in respect of the commercial radio tariff, making it interim from November 7, 2012 in respect of CSI.

3. Reproduction of Literary Works

The Board held 1 hearing, related to copying in provincial and territorial government offices. The Board also issued one decision:

  • On January 18, 2013, the Board certified a new tariff for copying in elementary and secondary schools; this was required after the Supreme Court of Canada quashed the previous tariff.

4. Arbitration

Three decisions were rendered:

  • On April 30, 2012, the Board issued licences in a SODRAC v. CBC arbitration, relating in part to interactive kiosks and the Explora Service;
  • On November 2, 2012, the Board issued final licences to CBC (November 14, 2008 to March 31, 2012) and Astral (December 19, 2008 to August 31, 2012) for the use of SODRAC repertoire; and,
  • On January 16, 2013, the Board issued an Interim Decision in an arbitration between SODRAC and CBC, extending the November 2, 2012 licence from November 3, 2012 onward.

5. Private Copying

A hearing was conducted for private copying onto blank media.

6. Retransmission

One decision was rendered:

  • On December 21, 2012, the Board issued an Interim Decision in respect of the retransmission of distant television signals as of January 1st, 2013.

7. Unlocatable Copyright Owners

In 2012-13, 24 applications were filed and 8 licences were granted.

8. Agreements Filed with the Board

In 2012-13, 212 agreements were filed with the Board pursuant to section 70.5 of the Act.

Internal Services

Internal services are groups of related activities and resources that are administered to support the needs of programs and other corporate obligations of an organization. These groups are: Management and Oversight Services; Communications Services; Human Resources Management Services; Financial Management Services; Information Management Services; Information Technology Services; Real Property Services; Materiel Services; Acquisition Services; and Travel and Other Administrative Services. Internal Services include only those activities and resources that apply across an organization and not to those provided specifically to a program.

2012-13 Financial Resources ($ thousands)
Planned Spending 2012-13 Actual Spending 2012-13 Difference 2012-13
592 477 115
 
2012-13 Human Resources (Full-Time Equivalents - FTEs)
Planned Actual 2012-13 Difference 2012-13
3 3 0
 

Performance Analysis and Lessons Learned

This activity deals with financial and materiel management policies, systems, processes and standards. In implementing these policies, compliance with Parliament's requirements for financial stewardship and integrity is ensured. This activity also encompasses the responsibility of providing human resource services. The Board receives timely support from the services mentioned above.

Section III: Supplementary Information

Financial Statements Highlights

Condensed Statement of Operations and Departmental Net Financial Position

Copyright Board of Canada
Condensed Statement of Operations and Departmental Net Financial Position (Unaudited)
For the Year Ended March 31, 2013
(in dollars)
  2012-13 Planned Results 2012-13 Actual 2011-2012 Actual $ Change (2012-13 Planned vs. Actual) $ Change (2012-13 Actual vs. 2011-12 Actual)
Total expenses 3,466,826 2,863,095 2,848,159 603,731 14,936
Net cost of operations before government funding and transfers 3,466,826 2,863,095 2,848,159 603,731 14,936
Departmental net (356,985) (375,075) (389,958) 18,090 14,883
 

For fiscal year 2012-13, the Board's total actual expenses are $2.9 million, essentially unchanged since 2011-12. The 2012-13 planned expenditures were at about $3.5 million, $600,000 above actual expenses for the same period. This is mainly the reflection of positions that are vacant at the Board. Processes are in place to staff some of these positions.

Condensed Statement of Financial Position

Copyright Board of Canada
Condensed Statement of Financial Position (Unaudited)
As at March 31, 2013
(in dollars)
  2012-13 2011-12 $ change
Total net liabilities 455,497 475,116 (19,619)
Total net financial assets 60,463 54,160 6,303
Departmental net debt 395,034 420,956 (25,922)
Total non-financial assets 19,959 30,998 (11,039)
Departmental net financial position (375,075) (389,958) 14,883
 

The Board's net financial position for fiscal year 2012-13 is at $-375,000, a slight decrease of about $15,000 since 2011-12. This is mainly a result of a decrease in the Board's total net liabilities.

Financial Highlights Graphs

Assets by Type

Total assetsTotal assets are valued at about $142,000 in fiscal year 2012-13. This is composed of tangible capital assets (14% or $20,000), due from CRF (43% or $60,000) and accounts receivable held on behalf of Government (43% or $62,000).

 

LiabilitiesTotal liabilities are valued at about $455,000 for fiscal year 2012-13. This is mostly made up of employee future benefits (47% or $212,000), vacation pay and compensatory leave (26% or $121,000) and accounts payable and accrued liabilities (27% or $122,000).

 

Fiscal yearFor fiscal year 2012-13, total expenses are $2.9 million. Most of these expenses are made up of salaries and employee benefits (65% or $1.9 million) and operating expenses (35% or $1 million). The majority of these latter expenses are required for the Board's unique program activity. The balance is made up of expenses associated with internal services.

 

Financial Statements

The Board's financial statements can be found on the Board's website Financial Statementsii.

Tax Expenditures and Evaluations Report

The tax system can be used to achieve public policy objectives through the application of special measures such as low tax rates, exemptions, deductions, deferrals and credits. The Department of Finance publishes cost estimates and projections for these measures annually in the Tax Expenditures and Evaluationsiii publication. The tax measures presented in the Tax Expenditures and Evaluations publication are the sole responsibility of the Minister of Finance.

Section IV: Other Items of Interest

Organizational Contact Information

Copyright Board of Canada
Suite 800 - 56 Sparks Street
Ottawa, Ontario K1A 0C9
Telephone : 613.952.8621
E-mail : secretariat@cb-cda.gc.ca

Additional Information

Board Members

Board members are appointed by the Governor in Council to hold office during good behaviour for a term not exceeding five years. They may be reappointed once.

The Act requires that the Chairman must be a judge, either sitting or retired, of a superior, county or district court. The Chairman directs the work of the Board and divides its caseload among the members.

The Act also designates the Vice-Chairman as Chief Executive Officer of the Board. He or she exercises direction over the Board and supervises its staff.

The organizational structure of the Board follows the requirements set out in section 66 and following sections of the Act.

Board's Staff

The Board has a staff of 14 employees, organized around five operational groups:

  1. The Registry group plans and manages all activities and resources related to public hearings and the issuing of licences for the use of works whose copyright owners cannot be located. This includes receiving, organizing and reviewing the documentary evidence and information, and organizing and maintaining the Board's records, archives and library.
  2. The Research and Analysis group, which is responsible for the preparation and analysis of reports and research papers, the development of scenario analysis and recommendations and the provision of economic support to Board members and for decisions.
  3. The Legal Analysis group, which provides legal analysis and advice on tariff and licence applications before the Board, and represents the Board before the Courts in matters involving its jurisdiction.
  4. The Corporate Services group, which is responsible for financial and materiel management policies, systems, processes and standards which are consistent with modern comptrollership.
  5. The Technical Support group, which provides support in particular in respect of computers and related technology.

Endnotes

i. Public Accounts of Canada 2012, http://www.tpsgc-pwgsc.gc.ca/recgen/cpc-pac/index-eng.html

ii. Copyright Board of Canada Financial Statements, http://cb-cda.gc.ca/about-apropos/annual-annuel/2011-2012-financial-statements-etats-financiers-e.html

iii. Tax expenditures and evaluations, http://www.fin.gc.ca/purl/taxexp-eng.asp