Policy on Filed Agreements
Note: This policy is currently under review by the Board. The updated policy will be published here, once it is completed. Follow our Twitter to stay informed.
Access to Agreements filed with the Copyright Board pursuant to section 76 of the Copyright Act
Pursuant to the Copyright Act, collective societies and users of copyrights can agree on the royalties and related terms of licences for the use of a society’s repertoire. Filing an agreement with the Board, within 15 days of its conclusion, shields the parties from prosecutions pursuant to section 45 of the Competition Act [s. 76 of the Copyright Act]. The same provision also grants the Director of Investigation and Research appointed under the Competition Act access to those agreements. In turn, where the Director considers that such an agreement is contrary to the public interest, he may request the Board to examine it. The Board then sets the royalties payable under the agreement, as well as the related terms and conditions.
Members of the public sometimes ask to consult filed agreements. At first, the Board granted free access to them, until some of the collectives started questioning this approach. Since then, access requests have been dealt with in accordance with the Access to Information Act (ATIA), with the attendant exceptions to disclosure, including those concerning confidential information of a financial and commercial nature. However, section 68 of the ATIA allows the Board to "opt out" of the restrictions to disclosure set out in the ATIA by adopting a policy of open access to all agreements, as long as the Copyright Act allows the Board to adopt such an open access policy. This in turn raises practical, legal and public policy issues. The object of this notice is to set out the Board’s policy in this matter.
There are powerful arguments in favour of either position. On the one hand, it can be argued that the filing mechanism exists for the benefit of the Director who, alone, is granted access to agreements. In exchange for immunity from criminal prosecutions, parties file with the Board documents which would be otherwise much less readily accessible to the Director, and attorn to the Board’s jurisdiction to change the terms of the agreement if the Director challenges them. A policy of public access could result in fewer filings, thus undermining the objective of the law.
On the other hand, it can be argued that the main objective of the filing mechanism is transparency: the filing of agreements without the public having access to them is pointless. The Director is unlikely to exercise his rights under the Copyright Act unless pressed to do so by persons who have reason to believe that they are the subject of some discrimination by a collective society. Those persons cannot reasonably be expected to establish that they are being discriminated against if they cannot access the agreements that are the source of that potential discrimination. Thus, to be workable, the scheme requires that such person be given access to the agreements.Transparency is the price paid by those who file agreements for immunity from prosecution. According to this analysis, the Board not only can, but should adopt a more liberal access policy than what is provided for in the ATIA because anything else defeats the very purpose of the mechanism. The access right granted to the Director can be seen as merely allowing him to consult agreements not otherwise accessible under the ATIA or the Privacy Act.
In the end, the Board opts for the second scenario. In the Board’s view, transparency, through public scrutiny, is essential and must be the overriding consideration if this regime is to function properly. It is highly unusual that commercial agreements are granted immunity from section 45 of the Competition Act. Reliance on complaints by informed industry participants with access to the agreements is clearly the preferable means of identifying cases requiring closer examination by the Board, where the Director finds that the agreement may be contrary to the public interest. The availability of immunity should be a sufficient incentive to overcome the concern of any chilling effect.
Consequently, the following access policy will be applied with respect to all agreements filed with the Board pursuant to section 76 of the Copyright Act:
- Access requests to agreements filed before January 1, 1999 will continue to be dealt with in accordance with the ATIA, whether or not a request for confidential treatment was made at the time of filing.
- All agreements filed on January 1, 1999 or later will be accessible to the public.
- Agreements will continue to be screened before access for the purposes of the Privacy Act.