The Copyright Board and Tribunals Process: Users in the Balance

Western University Scholarship@Western Electronic Thesis and Dissertation Repository 3-22-2016 12:00 AM The Copyright Board and Tribunals Process: Users in the Balance Louis J. D'Alton The University of Western Ontario Supervisor Dr. Samuel Trosow The University of Western Ontario Graduate Program in Law A thesis submitted in partial fulfillment of the equirr ements for the degree in Master of Studies in Law © Louis J. D'Alton 2016 Follow this and additional works at: https://ir.lib.uwo.ca/etd Part of the Administrative Law Commons, Arts Management Commons, Audio Arts and Acoustics Commons, Composition Commons, Entertainment, Arts, and Sports Law Commons, Intellectual Property Law Commons, Musicology Commons, Music Performance Commons, Other Film and Media Studies Commons, and the Other Music Commons Recommended Citation D'Alton, Louis J., "The Copyright Board and Tribunals Process: Users in the Balance" (2016). Electronic Thesis and Dissertation Repository. 3708. https://ir.lib.uwo.ca/etd/3708 This Dissertation/Thesis is brought to you for free and open access by Scholarship@Western. It has been accepted for inclusion in Electronic Thesis and Dissertation Repository by an authorized administrator of Scholarship@Western. For more information, please contact [email protected]. Abstract The wholesale adoption of copyright collective management as a public policy tool has had an extraordinary impact on the information landscape. The unfettered expansion of collective rights organizations throughout the 20th century has resulted in increased social costs and a burgeoning bureaucracy surrounding the collective use of rights. This thesis considers the role of copyright tribunals within that process, and more importantly within a critical historical frame. While some work has been done with respect to copyright tribunals and their role in the policy process, none of it has considered the tribunals within a critical frame. This thesis considers those agencies, and the Copyright Board of Canada in particular, within the context of their initial creation as oversight on copyright collectives, their subsequent regulatory practice and their current role within the larger policy frame. Utilizing Antonio Gramsci’s conception of hegemony, the thesis views the current capture of those agencies as a further indication of the growing hegemony surrounding copyright in general and collective management regimes in particular. Keywords: music; performance right; copyright law, copyright collectives, copyright tribunals, intellectual property; critical analysis; Gramsci. ii Dedicated to my sons, Louis Michael Richard D’Alton & Sean William Erik D’Alton iii Table of Contents Abstract ii Dedication iii Table of Contents iv List of Tables vi Chapters 1: Introduction and Statement of Problem 1 2: Contextualizing the Copyright & Tribunal Discussion 14 2.1: Copyright Myths 15 2.2: Common Law Model 17 2.3: Justification on the Basis of Economic Efficiency 18 2.4: Limitations on the Efficiency Model 19 2.5: Natural right of the Creator 22 2.6: Reconsidering Natural Right Theory 25 2.7: The Economic Core at the Heart of Copyright 26 2.8: Gramsci, Hegemony & Copyright 28 2.9: The Public Performance Right 31 2.10: Hegemonic Resistance 34 3: Parallel Evolutions of Copyright Tribunals 39 3.1: Creation of the First Tribunal 40 3.2: The Copyright Appeal Board of Canada 45 3.3: The Copyright Board of Canada 46 3.4: The Copyright Tribunal of Great Britain 48 3.5: Copyright Tribunal of Australia 52 3.6: Considering the Three Regimes 53 3.7: Systemic Differences 55 4: The User Returns 58 4.1: Fair Dealing as a User Right 59 4.2: The United Kingdom 64 4.3: Australia 65 4.4: Conclusion 67 iv 5: The Copyright Board Under Review 69 5.1: Contextualizing the Federal Court Review 74 5.2: Decisions of the Federal Court of Appeal 75 5.3: The Pentalogy 80 ESA v SOCAN 80 SOCAN v Bell 81 Alberta v Access Copyright 83 Rogers Communications Inc. v SOCAN 86 ReSound v Motion Picture Theatre Associations of Can 87 5.4: Impact of CCH & Pentalogy 88 6: Inquiring Into the Process 93 6.1: The Hargreaves Report 97 6.2: Collecting Societies Codes of Conduct 100 6.3: Lobbynomics 100 6.4: Simpson Report 102 6.5: Recent Canadian Developments 103 7: Reassessing the Copyright Board in a Gramscian Frame 123 7.1: Research Questions 133 7.2: Concluding Thoughts 136 Bibliography 141 Curriculum Vitae 151 v Tables Table 1: Tribunal Comparison 57 Table 2: Federal Court of Appeal Decisions 90 vi Statement of Problem Within the larger frame of intellectual property, the generally unknown public performance right and its varied interpretations have grown exponentially in the last thirty years. Performance rights organizations have been responsible for the massive growth of copyright collectives worldwide, but nowhere more than in Canada. Prior to the 1988 Phase I revisions to the Copyright Act,1 there was a single copyright collective authorized under Canadian law, for the collection of music performance rights. Since the Phase I revisions were enacted, more than thirty-eight copyright collectives2 have been registered with the Copyright Board of Canada. With thirty-eight registered collectives, Canada has more than double the copyright collectives of any other nation. 3 The continued growth of copyright collectives reflects their unique ability to extract value from previously existing works. New collectives mean new revenue streams on works already in circulation as well as those yet to be created. The current Canadian copyright collectives owe their existence to the establishment and expansion of the public performance right in Canada. While initially limited to the public performance right in musical works, copyright collectives have now expanded their scope to encompass other areas.4 Several Royal Commissions have 1 Copyright Act, RSC 1985, c C-30 s. 1 [Act]. 2 A copyright collective is an agency created under the terms of the Copyright Act which collects royalties or licensing fees on behalf of registered copyright owners. Note however that of the 38 collectives listed there are only 35 separate collectives; 3 collectives (Societe du Droit de Reproduction des Auteurs Compositeurs et Editeurs au Canada [SODRAC], Canadian Mechanical Reproduction Rights Agency [CMRRA] and Society of Composers Authors and Music Publishers of Canada [SOCAN]) collect in multiple areas. 3 Daniel J. Gervais, “Collective Management of Copyright and Neighbouring Rights in Canada: An International Perspective” (2002) 1 CJLT 2 at 18 table 3. 4 For example, Access Copyright collects for the reproduction rights of works published in books, 2 been created in response to the concerns5 from users6 brought forward in the wake of the creation of the original Canadian collective. Canada established a copyright tribunal in 1936, well in advance of other common-law countries.7 While some form of this tribunal has been in operation for almost eighty years there has been very little scholarship in regard to its operation and almost none that attempts to critically engage the issue beyond simple economic or legal function. The intent of this thesis is to consider the history and expansion of the Copyright Board of Canada with particular reference to its regulatory oversight role on behalf of users. Contextualizing the issue within the frames of information policy, legal theory and critical historical analysis will provide a holistic approach to understanding the establishment and expansion of the board and its powers. Using a critical historical holistic approach will enrich the policy analysis with factors beyond simply the purely economic or legal. This approach is not intended to derogate the importance of such factors, but rather to recognize that legal and economic institutions operate in a larger public realm and not only impact that realm, but are also impacted by it. As an example, the massive expansion of copyright collectives following the 1988 revisions to the Act can be seen as a magazines, journals and newspapers. The Producers Audiovisual Collective of Canada collects fees from the sale of blank audiovisual recording media and devices (often referred to as "private copy levies"), from the rental and lending of video recordings, from exhibition or public performance rights, and from educational copying and performance of audiovisual works. 5 These commissions will be discussed in chapter three but primarily concerned the level of tariff being charged, and the legitimacy of works for which tariff was sought. 6 User in this context would refer to anyone person or group requiring the use of a copyrighted work subject to collective license. 7 Daniel Gervais, “A Uniquely Canadian Institution: The Copyright Board of Canada” in Ysolde Gendreau, ed, An Emerging Intellectual Property Paradigm: Perspectives from Canada (Cheltenham: Edward Elgar, 2008) at 207. Mario Bouchard, “Collective Management in Commonwealth Jurisdictions: Comparing Canada with Australia” in Daniel Gervais, ed, Collective Management of Copyright and Related Rights (The Netherlands: Kluwer, 2006) at 310. 3 strategic policy initiative on the part of the government. Generally, such far-reaching initiatives are the result of factors beyond the simply legal, leading to the question of how the function of the board has impacted the larger policy process, and was in turn impacted by it. Viewing the problem within a critical historical frame, the primary focus will be upon the changing role of the board over time, in particular the decisions of the Board given the direction of the Supreme Court of Canada (SCC) in 2004 & 2012. Justification Intellectual Property (IP) regimes have traditionally depended upon the container to provide the physical embodiment of artificial scarcity. Maintaining the myth of scarcity and the control of intellectual works is increasingly difficult in our expanding digital society. Increasingly one of the responses being used to address that concern is that of collectivization. While the expansion of collectives within the copyright regimes has largely gone unnoticed by the public, these agencies collect yearly rents in excess of $342 million from Canadian users.

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