Home Page News Opinion Foreign Policy Politics Policy Legislation Lobbying Hill Life & People Hill Climbers Heard On The Hill Calendar Archives Classifieds
Hill Times Events Hill Times Books Hill Times Careers The Wire Report The Lobby Monitor Parliament Now
Subscribe Free Trial Reuse & Permissions Advertising
Log In
Legislation

Harmonizing statutory damages will improve Copyright Board

By Barry Sookman      

Innovation Minister Navdeep Bains and Heritage Minister MĂ©lanie Joly established the Copyright Board consultation to help creators get paid faster. The harmonization of statutory damages would help accomplish that.

Heritage Minister MĂ©lanie Joly, pictured recently in Ottawa, said 'We will reform the Copyright Board to ensure that we pay our artists faster and reduce costs for all parties.' The Hill Times photograph by Andrew Meade
Share a story
The story link will be added automatically.

TORONTO—Everyone agrees that the Copyright Board needs fixing. A Senate committee recommended a full review in 2016. The government acted on the recommendation by convening a public consultation and received numerous submissions.

One of the government’s options to make the board more effective is to harmonize the availability of statutory damages so they are available to all creators represented by collectives and not only those represented by the performing rights societies SOCAN and Re:Sound, the music licensing company.

Michael Geist (“Snatching defeat from the jaws of victory,” The Hill Times, June 4, 2018) opposes harmonization. His opposition does not withstand scrutiny.

He claims that removing the discriminatory treatment between classes of collectives would pre-empt the work of the Industry Committee doing the mandatory copyright review. But, the government is approaching copyright reform on two tracks and harmonizing statutory damages is squarely within the Copyright Board consultation. The consultation paper specifically asked whether the different collective administrative regimes could be harmonized and specifically whether the statutory damages regime should apply to all collectives.

Innovation Minister Navdeep Bains emphasized reforms to provide ‘an efficient, transparent, stable and predictable regulatory environment.’ The Hill Times photograph by Sam Garcia

Both ministers in charge of copyright stated that a goal of the Copyright Board’s reform is to get creators paid faster. Heritage Minister MĂ©lanie Joly stated: “we will reform the Copyright Board to ensure that we 
 pay our artists faster and reduce costs for all parties” and also to “enable creators to efficiently access 
stable streams of revenue.” Innovation Minister Navdeep Bains emphasized reforms to provide “an efficient, transparent, stable and predictable regulatory environment.”

Understanding the fundamental link between mechanisms that lead to a tariff being set by the board and the ability to predictably collect royalties—and in response to the government’s specific question as to whether all collectives should be treated equally—creators supported harmonization.

Geist suggests that only Access Copyright wants harmonization. In fact, it was supported by collectives and industry groups representing creators from Quebec and across Canada and from the spectrum of the cultural industries including program producers, visual, and media artists, music artists, performers, composers, publishers, and makers of sound recordings, and authors and publishers of books.

Geist argues that the proposal would have “a dramatic impact on substantive copyright issues such as fair dealing.” That is just wrong. When setting tariffs the board doesn’t include royalties for uses of works covered by fair dealing.

Geist incorrectly claims that harmonization threatens “to create massive liability risks for some copyright stakeholders.” Users can appear before the board to oppose a tariff, argue that dealings are fair dealings, or for a lower royalty. Once a tariff is certified, users know what has to be paid. The integrity and respect for the board process is undermined if creators wait years for a tariff to be certified and still can’t get paid.

When statutory damages were first introduced into law the government published a fact sheet. It explained, contrary to Geist’s claims, that statutory damages provide deterrents against infringement, better compensate copyright owners, ease the evidentiary burden in infringement proceedings, reduce the costs of litigation, and encourage settlements. The additional rational for statutory damages for collectives included “to encourage users to obtain the appropriate licences beforehand.”

The technical lacuna in the existing regime unfairly discriminates against creators represented by collectives that are not performing rights societies. Geist argues this can be justified because only latter collectives are compelled to apply for tariffs. But the distinction between collective types is one without a material difference.

First, the tariff process is compulsory for CRC. Second, in both regimes the copyright holder has the option to sue for infringement if a user refuses to pay the tariff or the collective can sue for payment of royalties under the tariff; the only difference in the regimes is that the performing rights societies must first file tariffs. In both cases, copyright holders cannot sue a person for infringement who has paid or offered to pay the applicable tariff. Third, for all practical purposes creators have to rely on the collective regime. Many don’t have the resources to track down or negotiate licenses with thousands of users for thousands of works, especially with the explosion of uses arising from digitation and the internet.

Joly and Bains established the Copyright Board consultation to help creators get paid faster. The harmonization of statutory damages would help accomplish that.

Barry Sookman is a senior partner in the Technology Law Group of McCarthy TĂ©trault LLP. He is also an adjunct professor of intellectual property law at Osgoode Hall Law School.

The Hill Times 

More in News

Liberals should be ‘exceptionally concerned’ about potential recession in 2019, voters’ anxiety on ‘unrestricted immigration,’ says Nanos

News|By Abbas Rana
Conservative MP David Tilson denies that his party is playing politics by opposing the Trudeau Liberal government's decision on the UN Global Compact on Migration.

Conservative, Liberal staffers want job descriptions, defined pay scales, but Conservative MPs on BOIE shoot down House proposal to help MPs better manage their offices

Conservative and Liberal staffers say they're overworked, underpaid, and some constituency office staffers say they don't feel their work is valued or adequately appreciated by MPs

After two weeks of fury, it’s time for high-level talks between Canada and China, experts say

Canada and China are in a high-stakes dispute over the arrest of a Huawei executive, and options are limited for cooling the boiling conflict.

‘It’s our workplace and our home,’ Parliamentarians to be consulted on massive renovations to iconic Centre Block over next decade

News|By Emily Haws
Officials in charge of Centre Block's renovation told the Procedure and House Affairs Committee on Dec. 10 that the next year would be spent developing a detailed budget, timeline, and plan for work.

Freeland named most valuable politician, NAFTA voted biggest story in The Hill Times’ 22nd Annual All Politics Poll

News|By Beatrice Paez
Canada's top diplomat has had a meteoric rise. She was seen to have deftly handled the volatile NAFTA file and kept her cool amid the heated dispute with the Saudi regime over her call for the release of its dissidents.

Finance bureaucrats, House committee need to stop working in silos on budget planning, says ex-PBO Page

News|By Emily Haws
Liberal House Finance Committee chair Wayne Easter says he thinks the finance minister, his staff and bureaucrats have been listening.

Amid holiday festivities, Liberal leadership warns MPs, Hill staffers about ‘zero tolerance’ for harassment, confidential memo shows

News|By Abbas Rana
'Jokes in bad taste, comments about a colleague’s physical appearance, sustained looks, etc. can constitute harassment,’ reads the memo sent out Liberal MPs and staffers.

RCMP forensic lab ‘drowning in work’ as it misses all response targets, internal figures show

Lawyer Rick Woodburn says prosecutors have to wait too long for samples from the lab, leading to worrying court delays and cases being thrown out.

Booting of NATO group chair prompts new rules for association oversight

The Joint Interparliamentary Council approved a new process to step in when parliamentary associations lose confidence in their leaders.
Your group subscription includes premium access to Politics This Morning briefing.