Copyright Board Canada
Canada



Ministers' Message

We are pleased to report the key results of the Copyright Board of Canada for 2015-16.

The programs of the Innovation, Science and Economic Development Portfolio work together to deliver what Canada needs to improve productivity performance, to grow the economy and to enhance prosperity and well-being. That means supporting the government’s commitment to develop an Innovation Agenda, which will in turn create good paying jobs for the middle class, drive growth across all industries, and improve the lives of Canadians. The work of the Portfolio includes helping small businesses grow through trade and innovation, promoting increased tourism to Canada, and supporting scientific research and the integration of scientific considerations in our investment and policy choices.

As we approach Canada’s 150th anniversary, we pledge to continue working with stakeholders from across the country to strengthen our place in the global economy.

It is our honour to present the 2015-16 Departmental Performance Report for the Copyright Board of Canada.

Minister’s Message

The Honourable Navdeep Bains
Minister of Innovation, Science and Economic Development

Minister’s Message

The Honourable Kirsty Duncan
Minister of Science

Minister’s Message

The Honourable Bardish Chagger
Minister of Small Business and Tourism and Leader of the Government in the House of Commons

Results Highlights

What funds were used?
(2015-16 Actual Spending)
Who was involved?
(2015-16 Actual Full-Time Equivalents [FTEs])
$2,828,705 18

Results Highlights

Fair decision-making processes provide proper incentives for the creation and use of copyrighted works. In pursue of this outcome, the Board held two hearings during the fiscal year. The first concerned the retransmission of distant television signals in Canada, for the years 2014 to 2018. The other concerned the reproduction of literary works by post-secondary educational institutions in Canada, for the years 2011 to 2017.

In addition, the following two decisions were rendered:

  • May 23, 2015 – Access Copyright Provincial and Territorial Governments Tariff, 2005-2014
  • February 20, 2016 – Access Copyright Elementary and Secondary School Tariff, 2010-2015

Also, the Board received 34 licence applications for unlocatable copyright owners and granted 6 such licences. Finally, 389 agreements were filed with the Board pursuant to section 70.5 of the Copyright Act.

Section I: Organizational Overview

Organizational Profile

Appropriate Ministers:

  • The Honourable Navdeep Bains, P.C., M.P
    Minister of Innovation, Science and Economic Development
  • The Honourable Kirsty Duncan, P.C., M.P.
    Minister of Science
  • The Honourable Bardish Chagger, P.C., M.P.
    Minister of Small Business and Tourism and Leader of the Government in the House of Commons

Institutional Head:
Claude Majeau, Vice-Chairman and CEO

Ministerial portfolio: :
Innovation, Science and Economic Development

Enabling Instrument:
Copyright Act

Year established: 1989

Organizational Context

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 licences 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;
  • determine compensation to be paid by a copyright owner to a person to stop her from performing formerly unprotected acts in countries that later join the Berne Convention, the Universal Convention or the Agreement establishing the World Trade Organization; and,
  • conduct such studies with respect to the exercise of its powers as requested by the Minister of Industry.

Strategic Outcome and Program Alignment Architecture

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

    1.1 Program: Copyright Tariff Setting and Issuance of Licences

Internal Services

Operating Environment and Risk Analysis

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 below in this report.

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.

Key Risks

Risk Risk Response Strategy Link to Program Alignment Architecture
Technology risk
  • Systematically monitor relevant journals, other publications and web sites, and to attend industry seminars and conferences.
  • Risk was identified in the 2015-16 RPP.
  • No modifications to the risk mitigation strategies.
Fair decision-making to provide proper incentives for the creation and use of copyrighted works.
Reversal risk
  • Issue fair and equitable decisions.
  • Risk was identified in the 2015-16 RPP.
  • No modifications to the risk mitigation strategies.
Fair decision-making to provide proper incentives for the creation and use of copyrighted works.
HR risk
  • Run well-organized job competitions, designed to target a significant share of the pool of potential candidates.
  • Take measures to encourage a large number of applications.
  • Create a stimulating working environment conducive to a high retention rate among its employees.
  • Risk was identified in the 2015-16 RPP.
  • No modifications to the risk mitigation strategies.
Fair decision-making to provide proper incentives for the creation and use of copyrighted works.
 

Organizational Priorities

Name of Priority: Ensure timely and fair processes and decisions

Description: 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.

Priority Type: Ongoing

Key Supporting Initiatives

Planned Initiatives Start Date End Date Status Link to the Organization’s Program
1. Procedural measures Ongoing Ongoing On track Copyright Tariff Setting and Issuance of Licences
2. Working Committee Nov. 2012 Ongoing On track Copyright Tariff Setting and Issuance of Licences

Progress Toward the Priority

In 2015-16, the Board took several steps which resulted in a reduction of the regulatory burden. For instance, the Board consolidated multiple tariffs in respect of a single user, the pay audio services. It also consolidated multiple licence applications in respect of the same user, the Canadian Broadcasting Corporation. These steps contributed to cost savings for all participants.

In 2012-13, the Board established a Working Committee on its Operations, Procedures and Processes. The Committee, comprised of key stakeholders, examines possible improvements to the Board’s rules of practice and procedure, with a view to reducing uncertainty and streamlining the procedures while safeguarding the fairness of the process. In December 2014, the committee finalized a discussion paper dealing with the identification and disclosure of issues to be addressed during a tariff proceeding and with the interrogatory process. The paper was released for public consultations in February 2015.

In parallel to this exercise, there were a number of initiatives undertaken by the two Departments responsible for the copyright legislation: Innovation, Science and Economic Development Canada and Canadian Heritage. These initiatives deal with a number of issues related to the Copyright Board and its processes. In view of these, the Board decided to hold on issuing a decision with respect to the Committee’s recommendations, so that it can benefit from the Departments’ initiatives.

The Board gathers data on the number of months between the date when a particular tariff proceeding is complete, and the date when the tariff is certified. In the Report of Plans and Priorities (RPP) for 2015-16, a target of 12 months was set, with a complying percentage of 70 per cent.

Two decisions were rendered by the Board during fiscal year 2015-16. Of these two decisions, one (or 50 per cent) was issued within 12 months of completion of the proceedings. Hence, our target was not met in respect of the decisions. The complexities associated with the files explain why the Board needed more time to analyse the evidence.

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 2015-16, 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.

Six licences were delivered during fiscal year 2015-16. All of these seven licences were issued within 45 days. Our target was thus successfully met, and surpassed.

Name of Priority: Advance the analytical framework for decisions and the regulatory processes for tariff-setting

Description: 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.

Priority Type: Ongoing

Key Supporting Initiatives

Planned Initiatives Start Date End Date Status Link to the Organization’s Program
Participation in international initiatives Ongoing Ongoing On track Copyright Tariff Setting and Issuance of Licences
Progress Toward the 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 2015-16, the following is noteworthy: the annual meeting of the Society for Economic Research on Copyright Issues (SERCI) (Glasgow, September 2015). 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.

For more information on organizational priorities, see the Ministers’ mandate letter.