Proposed Rules of Practice and Procedure
Overview of the Proposed Rules for Practice and Procedure at the Copyright Board of Canada
This page is intended as an overview of the proposed Rules of Practice and Procedure, to facilitate meaningful consultation in advance of their final approval.
Collective management societies, rights holders, representatives of creators and of users of copyright, as well as the general public are invited to submit comments on the proposed text by July 18, 2022.
The proposed text, the Regulatory Impact Assessment Statement and information on the filing of submissions can be found in the Canada Gazette.
Note: The information below does not provide a legal interpretation of the regulations, nor does it replace the regulations themselves.
Why Rules for Practice and Procedure?
As part of our commitment to more timely, predictable and efficient tariff approval processes, the Copyright Board has developed regulations setting out standard Rules of Practice and Procedure. The Rules aim to increase consistency between processes and predictability for Parties by providing clear and standardized rules for tariff and arbitration proceedings. They seek to offer parties and the public with reliable direction on how to participate in such Board proceedings, and what to expect when they do.
When the Rules come into force, the Copyright Board will publish detailed guidance on its processes, as well as a number of complementary Practice Notices and templates. The purpose of these additional tools is to support parties and the public when they participate in Board processes.
Overview of the Proposed Rules of Practice and Procedure
Part 1 sets out how to interpret the various provisions in the Rules. It provides definitions and generally-applicable rules, such as calculation of time-limits, that apply throughout.
Of note, Part 1 indicates that the Board may modify or supplement a given rule in order to deal with all matters as informally and expeditiously as the circumstances and considerations of fairness permit. The Board is committed to meaningful participation, and may vary a given rule to ensure that parties with less experience with Board processes have the time required to participate fully.
This Part outlines how to file and service documents, and choice of official languages for communication. It also specifies what constitutes quorum for Board decision-making.
Part 2 makes it clear that parties are required and expected to comply with the Rules. Nevertheless, no document or proceeding under the Rules is invalid by reason solely of a party not respecting form or technical requirements. This ensures that participants will not be prevented from full participation in Board proceedings due to unintended non-compliance with the Rules.
For details, see the Practice Notice on Electronic Files Submitted to the Copyright Board [PN 2019-001]
Part 3 of the Rules establishes the information that parties must submit to the Board when filing a proposed tariff or a related objection.
Specifically, collective management societies will be required to provide a detailed Notice of Grounds when filing a tariff proposal. The Notice of Grounds will describe the uses covered under the proposed tariff and explain the basis for the proposed royalty rate. By requiring this information prior to the objection period, potential users of the proposed tariff will have more information upon which to base their objection, and on which to evaluate their interest in participating in the proceedings. Detailed information on objections from users will also be required in the form of a Notice of Grounds for Objection.
By introducing Notice of Grounds requirements, the Board seeks to streamline and improve early information exchange between potential parties to a proceeding, and help the Board determine the likely scope and complexity of the proceedings. The additional information will help the Board establish reasonable and transparent timelines for the approval process.
For detailed guidance on filing proposed tariffs, Parties can refer to the Practice Notice on Filing of Proposed Tariffs [PN 2019-004 rev. 1]
The Board will also publish more detailed guidance on the Notice of Grounds and the Notice of Grounds for Objection on the Board website following the final publication of the Rules.
Part 4 explains how proceedings will be conducted at the Board, standardizing practices often encountered in Board proceedings involving written and/or oral hearings.
Statement of Issues
The Rules set out a new Joint Statement of Issues requirement to encourage parties to agree, to the extent possible, on the specific issues to be considered by the Board during the proceeding. Where they cannot agree on the issues, parties will be required to file individual Statements of Issues. The Statement of Issues process is intended to reduce the time and cost for all involved by clearly identifying issues in dispute.
Following final publication of the Rules, parties will be able to refer to a Practice Notice on Statements of Issues to help in fulfilling these new requirements.
Over the past several years, the Board has integrated case management practices into most of its proceedings, as a means of clarifying positions, resolving issues, setting next steps, and expediting proceedings. The Board intends to continue these practices in the future for all proceedings, in an informal way.
In certain proceedings, such as those where an oral hearing is required, a formal case manager will be appointed by the Chair of the Board. The Rules provide more details on the role of the case manager, including their powers to issue orders, convene case management conferences, and to consider—and to potentially resolve—issues of procedure.
Joint request to approve a tariff on the basis of an agreement
A set of royalty rates and conditions jointly submitted by a collective management society and one or more users may constitute important evidence in the Board’s consideration of a proposed tariff. When accompanied by certain key information, it can help expedite the process. The Rules set out general requirements for a joint request from parties to the Board, to approve a proposed tariff on the basis of agreed-upon royalty rates, and the related terms and conditions. For example, a joint request must be accompanied by supporting evidence for the proposal, and the actual negotiated agreements between parties.
For more detailed guidance on the joint submission of settlement text, parties can refer to the Practice Notice on Filing of Jointly-Submitted Texts in a Proceeding [PN 2022-005]
Discovery through interrogatory and filing of case record
Discovery through an interrogatory process is a common practice at the Board for more complex proceedings, but it can sometimes lead to lengthy and complicated exchanges between parties and the Board. The Board is committed to facilitating a well-managed interrogatory process, where parties are able to obtain useful information, without creating disproportionate burden.
As such, when proceedings require an interrogatory process, the Board can require a Statement of Issues, and assign a case manager early in the proceeding.
The Rules provide that the Board or the case manager may set parameters on interrogatories, including their number, type, scope and form, and on the time limits for their completion.
Part 4 also deals with standards for case records filed with the Board, specifying the contents of case records, responses, legal briefs, etc.
Part 4 also sets standards for oral hearings, so that parties and the public clearly know what to expect when they participate in one. In particular, as part of the Board’s commitment to transparency, the Rules provide that oral hearings are, by default, open to the public, and are supported, where required, by simultaneous translation of French and English. To increase predictability, and to ensure that the parties and the Board have sufficient time to consider any submitted evidence, the Rules restrict the filing of evidence during oral hearings
Part 5 clarifies certain practices in regard to evidence, including the treatment of confidential information. It specifies that any document filed with the Board in relation to a matter and any related proceeding is automatically placed on the public record, unless the document has been designated as confidential or highly confidential. Part 5 also sets standards for participation of expert witnesses and submission of reports, to ensure that these are relevant to the case.
The Rules are complemented by the Board’s Guidelines for Economic Evidence Submitted to the Copyright Board of Canada.
Parties can refer to the following Practice Notices to help implement these new requirements:
Part 6 allows a person other than a collective management society or an objector to make a request to the Board to participate in a proceeding as an intervener. In determining whether to grant the request, the Board will consider whether the person has sufficient interest in the proceeding, and whether they will present information or submissions that are useful and different. The Board will also take into account whether the intervention would prejudice any party to the proceeding, or interfere with its fair and expeditious conduct. The Rules set out the process by which a person may request to be an intervener. If the Board grants intervener status, it will set the terms of the intervention.
Part 6 also outlines the process for a person to submit a letter of comment in any proceeding. The Rules require that the Board provide all parties with a copy of any letter of comment, considering the letter and any response as part of the proceeding, and putting the letter on the public record.
Part 7 establishes transitional and coming-into-force rules, including that the Rules will be in force on the date of their final publication in the Canada Gazette, and will apply to all proceedings before the Board, except in respect of steps already taken or documents already filed.
All proposed tariffs currently filed with the Board, along with details of their status, can be found in the Ongoing Cases section.