Copyright Board Canada

Operating context: conditions affecting our work

The legislative framework of the Board has changed exponentially over the years. The Board was created in 1989 by the Phase I of the modifications to the Copyright Act as the successor of the Copyright Appeal Board which had been in existence since 1935. A second major phase of amendments to the Copyright Act, adopted in 1997 as Bill C-32, significantly expanded the Board's mandate and responsibilities.

A third major phase of amendments, the Copyright Modernization Act (Bill C-11), came into force in November 2012. By adding new rights and exceptions, this third phase of amendments further expanded the Board's mandate and workload.

In addition, decisions of the Federal Court of Appeal and of the Supreme Court of Canada continuously add to the legal and policy issues the Board must address and take into consideration.

Against this legal background, the Board must ensure to render fair, equitable and timely decisions that require dealing with increasingly complex legal and economic issues. Its decisions must be based on solid legal and economic principles, reflect a solid understanding of constantly evolving business models and technologies, and be fair and equitable to both copyright owners and users.

This operating background puts pressure on the Board to adjust its procedures to facilitate timely turnaround in its tariff certification process. In this context, the Board and the departments of Innovation, Science and Economic Development and Canadian Heritage have already collaboratively undertaken to develop options as to how the Act's scheme as well as the Board's practices and procedures can be modified so as to better meet the challenges of today's fast-paced digital economy. Implementation of some of these options is planned for 2018-29.

Key risks: things that could affect our ability to achieve our plans and results

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: for instance, the coherence between the various tariffs, their ease of administration and the need for some stability in the tariffs.

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.

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.

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 also a risk of failure to identify or retain the staff with the necessary technical expertise to achieve required results. Given the size of the Board, this is a significant risk that has the potential of directly affecting its capacity to adequately fulfill its mandate. 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
Risks Risk response strategy Link to the Board's Core Responsabilities Link to mandate letter commitments and any governmentwide or departmental priorities
Technology risk
  • Systematically monitor relevant publications and web sites, and attend industry seminars and conferences.
Copyright tariff setting and issuance of licences Innovation Agenda
Reversal risk
  • Issue fair and equitable decisions.
HR risk
  • Run well-organized job competitions, designed to target a significant share of the pool of potential candidates.
  • Create a stimulating working environment conducive to a high retention rate among its employees.