On November 21, 2018, Profs Teresa Scassa, Jeremy de Beer, and Michael Geist, members of the Centre for Law, Technology and Society, appeared before the Senate Committee on Banking, Trade and Commerce.
The Committee is currently evaluating Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures.
Prof. Teresa Scassa is a Member of the Centre, Full Professor in the Common Law section at the University of Ottawa's Faculty of Law and the Canada Research Chair in Information Law and Policy.
Prof. Jeremy de Beer is a Member of the Centre and a Full Professor in the Common Law section at the University of Ottawa's Faculty of Law.
Prof. Michael Geist if is a Member of the Centre, Full Professor in the Common Law section at the University of Ottawa's Faculty of Law and Canada Research Chair in Internet and e-Commerce Law.
- Prof Teresa Scassa's speaking notes are available here.
- See below for Prof. Beer's speaking notes.
- The webcast is available here.
Dear Honourable Senators,
My name is Jeremy de Beer. I am a Full Professor and Member of the Centre for Law, Technology and Society at the University of Ottawa’s Faculty of Law, appearing as an individual.
My testimony is based on my experience working for the Copyright Board, first as its former Legal Counsel and later as an advisor from time-to-time on various policy and procedural matters, as well as findings from my widely cited empirical study for the Departments of Canadian Heritage and what is now Innovation, Science and Economic Development Canada.
Thank you for the opportunity to re-appear before this Committee after my first appearance two years ago this month. Today, I will organize my remarks in response to the points raised in the Government’s own summary of proposed legislative changes.
Budgeted resources – Long overdue
First, as a general matter, it is great that, during the past two years, increased awareness of the Board’s importance has led the Government to commit in this budget the human and financial resources that I and nearly all stakeholders have long said are needed.
Formalized case management – Needed, but not by new legislation
Second, I strongly support procedural reforms that would implement case management practices. Besides resources, this is the single most important change needed to improve the tariff-setting process. While case management could have been implemented sooner by the Board under its existing regulatory powers, the Government gets credit for addressing the problem.
New timelines – Unnecessarily jeopardizes the Board’s independence
Earlier filing for longer periods will also help. A deadline for making final decisions may be useful, if it is realistic in light of the Canadian Board’s unique workload. However, I am concerned that giving the Governor in Council a new power to regulate timelines for “any procedural step” in a matter before the Board is inappropriate and unnecessary. It risks compromising the autonomy of this quasi- judicial tribunal in unprecedented ways. It increases the likelihood that substantive lobbying will seep into ostensibly procedural regulations. And it naively presumes that bureaucrats know better than the Board, and the judge who chairs it, how to manage cases.I recommend that section 295 of Bill C-86, which would amend section 66.91 of the Act, be deleted.
Codified mandate – Could cause more confusion and longer delays
A provision stating that the Board has a duty to act as informally and expeditiously as possible is good, especially as a signal to reviewing courts. But the mandate and decision-making criteria that Bill C-86 would codify are clearly a hodgepodge of political compromise that will could matters worse not better. Fortunately, Bill C-86 preserves the important public interest considerations in Board decision-making. While one lobby group in particular got its wish for a “willing seller-willing buyer” rate-setting criterion, in truth this has always been a factor in Board decisions, which the Federal Court of Appeal has upheld. As many stakeholders warned during consultations on this point, codifying decision-making criteria will do little but unsettle expectations, enable creative new arguments, and lead to years, maybe decades, of contentious litigation before the Board and courts.
The political compromise isn’t worth that price, so I would recommend deleting section 292 of Bill C-86.
Reducing oversight – May harm small business and competition
I also feel the need to forewarn this Committee that reducing the number of matters that must be considered by the Board will leave many small and medium sized businesses vulnerable to possible anti- competitive behaviour by collectives in powerful market positions. This radical change is being made without corresponding adjustments to the powers of the Board and/or the Commissioner of Competition to examine agreements for anti-competitive effects. Without the filing of such agreements, it will also be difficult for the Board to apply the willing buyer/seller criterion Bill C-86 would now impose. Finally, it may actually backfire by increasing the Board’s so-called “arbitration” workload.
These reforms should not be shoved through a budget bill. They should be properly studied in the context of the INDU committee’s section 92 review. However, given how deeply embedded this fundamental change is in the draft Bill before you, my most practical suggestion is for this Committee to urge INDU to properly consider the unintended consequences I’ve identified.
Amended enforcement – Right to hold the status quo
My final comment pertains to the amended provisions regarding the enforcement of tariffs. It is a relief that Bill C-86 does not permit all collective societies to bully users into accepting potentially unnecessary blanket licenses with the threat of statutory damages. While that is a bad idea generally, it is also premature so long as the courts are still considering questions about the nature of and need for certain tariffs in the first place.
Jeremy de Beer