SOR/2023-2420232
10
20232
23
COPYRIGHT ACTCopyright Board Rules of Practice and ProcedureP.C.2023-11220232
10
Whereas, under subsection 66.6(2)a of the Copyright Actb, a copy of the proposed Copyright Board Rules of Practice and Procedure, substantially in the annexed form, was published in the Canada Gazette, Part I, on June 18, 2022 and a reasonable opportunity was afforded to interested persons to make representations to the Copyright Board with respect to the proposed Regulations;S.C. 2018, c. 27, s. 294R.S., c. C-42Therefore, the Copyright Board makes the annexed Copyright Board Rules of Practice and Procedure under section 66.6a of the Copyright Actb.Ottawa, January 13, 2023La vice-présidente et première dirigeante de la Commission du droit d’auteur,Nathalie ThébergeVice-chair and Chief Executive Officer of the Copyright Board
Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, under section 66.6a of the Copyright Act,b approves the making of the annexed Copyright Board Rules of Practice and Procedure by the Copyright Board.Definitions, Application and InterpretationDefinitions
DefinitionsThe following definitions apply in these Rules.Act means the Copyright Act. (Loi)Chair means the Chair of the Board appointed under subsection 66(1) of the Act. (président)intervener means a person granted leave by the Board to intervene in a proceeding before the Board. (intervenant)member means a member appointed under subsection 66(1) of the Act. (commissaire)objector means a person that files an objection to a proposed tariff. (opposant)party means, in relation to a matter in respect of a proposed tariff filed under section 67 or 83 of the Act, the collective society that filed the proposed tariff, an objector or an intervener and, in relation to a proceeding in respect of an application made under subsection 71(1) of the Act, a collective society or user referred to in that subsection or an interverner. (partie)
Application
ApplicationThese Rules apply to any matter in relation toa proposed tariff filed by a collective society with respect to rights under section 3, 15, 18, 19 or 21 of the Act;a proposed tariff filed by a collective society with respect to royalties referred to in subsections 29.7(2) and (3) and paragraph 31(2)(d) of the Act;a proposed tariff filed by a collective society with respect to levies referred to in section 82 of the Act; andan application to fix royalty rates or any related terms or conditions in individual cases under subsection 71(1) of the Act.
InterpretationLiberal Interpretation
Varying, supplementing or dispensing with rulesAs the circumstances and considerations of fairness permit, the Board may vary or supplement these Rules, or dispense with compliance with these Rules in whole or in part, including in order todeal with matters informally and expeditiously;allow for meaningful participation of persons with an interest in a matter before the Board; ordeal with special circumstances.
DirectionsThe Board may, on its own initiative or on the request of a party or interested person, issue directions in respect of any procedural issue not explicitly addressed by these Rules or in respect of any uncertainty as to the application of these Rules.
Calculating Time Limits
Days not countedThe days included in the period beginning on December 21 in one year and ending on January 7 in the following year do not count in the calculation of a time limit set out in these Rules or in an order or a direction of the Board.
Definition of business dayIn these Rules, business day means a day other than a Saturday, a holiday or a day that falls in the period referred to in rule 5.
Time limitIf a time limit set out in these Rules or an order or direction of the Board falls on a day other than a business day, the time limit is extended to the next business day.
GeneralDefect in form
ValidityNo document or proceeding under these Rules is invalid by reason solely of a defect in form or technical irregularity.
Non-compliance
Non-complianceIf a party does not comply with these Rules, an order or direction of the Board, the Board maystay the proceeding until it is satisfied that the party has complied with the Rules, the order or the direction;decide the matter only on the basis of the information on the record; andtake any measure that it considers fair in the circumstances.
Quorum
QuorumIn all proceedings before the Board, the quorum is one member.
Filing of Documents
Manner of filingUnless otherwise provided by these Rules, a document to be filed with the Board must be filed by the electronic means specified by the Board.
Date of filingThe date of filing of a document with the Board is the date on which the Board receives the document. A document filed after 17:00 Ottawa local time is deemed to have been filed on the next business day.
Service of Documents
Manner of serviceService of a document is effected by sending an email that includes the document to the person being served or the person’s authorized representative. If it cannot be effected by email, service may be effected by personal service, by mail to the address for service described in subrule (2) or by any other means that the Board authorizes.Address for serviceThe address for service isthe most recent address used by the person or the person’s authorized representative in their written communication with the Board with respect to a proposed tariff or an application made under subsection 71(1) of the Act; orin the absence of the address referred to in paragraph (a), the most recent address that was used by the Board to send any notice or that appears in any notice issued by the Board with respect to the proposed tariff or the application made under subsection 71(1) of the Act or if no such address has been used or appears, the last known address of the person or the person’s authorized representative.Date and time of serviceA document is served on the date on which and at the time at which the person being served or the person’s authorized representative receives the document.Service by emailIn the absence of evidence to the contrary, a document served by email is presumed to have been received on the date and at the time that the email was sent.Receipt after 17:00A document received or presumed to have been received after 17:00 Ottawa local time is deemed to have been served on the next business day.Proof of serviceIf a person serves a document, the person must, at the Board’s request, file a proof of service of the document with the Board, in the form and manner specified by the Board.Proof of service — emailAbsent evidence to the contrary, the email referred to in subsection (1) constitutes proof of service of a document.
Language
Documents and proceedingsSubject to subsections 68.1(1) and 83(3) of the Act, documents used in a proceeding before the Board must be in the official language or languages of the parties’ choice and proceedings must be conducted in the official language or languages of the parties’ choice.TranslationA document written in a language that is other than English or French may be filed and served only if it is accompanied by a translation of that document into English or French and an affidavit attesting to the accuracy of the translation.
Filing of Proposed TariffNotice of Grounds for Proposed Tariff
Filing of notice of groundsA collective society that files a proposed tariff must file with the Board a notice of grounds for the proposed tariff within seven days after the day on which the proposed tariff is filed.
Contents of noticeThe notice of grounds for the proposed tariff mustdescribe the uses covered by the proposed tariff;set out the basis for the proposed royalty or levy rates; andinclude any other information required by the Board.
Other Documents
Filing of certain documentsA collective society that files a proposed tariff that covers the same or substantially the same uses as those in the last approved tariff or, if there is no approved tariff, in the last proposed tariff must file with the Board a comparative document that indicates the differences between the two tariffs, at the same time that it files a notice of grounds for the proposed tariff under rule 15.Publication of noticeThe Board must, in the manner that it sees fit, publish the notice of grounds for the proposed tariff and the comparative document.Additional informationA collective society may, at the same that it files the notice of grounds for a proposed tariff, file additional information for the Board’s consideration of the proposed tariff.
Notice of Grounds for Objection
Filing of notice of grounds for objectionA person that objects to a proposed tariff must file an objection with the Board in accordance with subsection 68.3(2) of the Act together with a notice of grounds for objection.
Contents of notice of grounds for objectionThe notice of grounds for objection must, as applicable,set out the grounds for why the Board should not approve the proposed tariff despite any alteration of royalties or levies or fixation of terms or conditions;set out the grounds for objection to the proposed tariff; andinclude any other information required by the Board.
Additional informationAt the same time a person files a notice of grounds for objection, the person may also file additional information for the Board’s consideration of the proposed tariff and of alterations to the royalty rates and to the related terms and conditions or of the new related terms and conditions.
Timing of replyA collective society that intends to file a reply to an objection under subsection 68.4(1) or 83(7) of the Act must do so within 14 days after the day on which it receives the notice of grounds for objection.
Sufficient informationIf the Board concludes that it has sufficient information to decide a matter before it, the Board may after giving notice to the collective society and the objector, decide the matter only on the information provided in the notice of grounds for the proposed tariff, any notice of grounds for objection and any reply to an objection and on any additional information filed under subrule 17(3) or rule 20.
Conduct of ProceedingsCommencement of Proceedings
NotificationThe Board must, in the manner it sees fit, publish a notice when it commences a proceeding.
Statement of Issues To Be Considered
Joint statement of issues to be consideredSubject to an order of the Board or case manager, if the Board has commenced a proceeding with respect to a proposed tariff and an objection to the proposed tariff has been filed, the parties to that proceeding other than an intervener, must jointly file with the Board a joint statement of issues to be considered.Time limitThe joint statement of issues to be considered referred to in subrule (1) must be filed within 90 days after the day on which the proceeding is commenced or within the time limit specified by the Board or case manager.
Contents of statementThe statement of issues to be considered must containa description of the issues to be considered;if applicable, a proposal to consolidate the proceeding with one or more other proceedings with respect to other proposed tariffs filed with the Board or with applications to fix royalty rates under subsection 71(1) of the Act, or with both; andany other information required by the Board.
Lack of agreementIf the parties are unable to agree on a joint statement of issues to be considered, each party to the proceeding, other than an intervener, must file with the Board and serve on each other party, within the time limit referred to in rule 24, a separate statement of issues to be considered that containsa description of the issues to be considered and the party’s position regarding each of those issues;if applicable, a proposal to consolidate the proceeding with one or more other proceedings with respect to other proposed tariffs filed with the Board; andany other information required by the Board.
Consideration of other IssuesThe Board may consider relevant issues other than those identified by the parties in the statement of issues to be considered.
Case Management
Definition of case managerFor the purposes of rules 23, 24, 29 to 35 and 53, case manager means the person assigned by the Chair under subsection 66.504(1) of the Act.
Powers of case managerIn relation to a matter or any step in a matter, the case manager may give a direction or make an order that adapts, restricts or excludes the application of any provision of these Rules.Participation in decision on meritsThe assignment of a member as the case manager does not prevent that member from participating in the decision on the merits of the matter.
Case management conferenceThe case manager may, during the course of a matter, conduct one or more case management conferences.Topics to be consideredDuring a case management conference, any of the following topics may be considered:the clarification, simplification and elimination of issues to be considered;opportunities for an agreement to be concluded on any of the issues to be considered;the issue of whether a question of law should be determined by the Board;the official language the parties will use during the proceeding;the issue of whether interrogatories should take place and their parameters as applicable;the filing of evidence;any questions of confidentiality;the parameters of any expert testimony, including the possibility of experts meeting before or after a hearing to answer questions posed by the Board;a proceeding schedule and the expected duration of the hearing;the documents to be filed with the Board before a hearing, including legal briefs and case records;the information and documents to be submitted to the parties at a hearing;a timetable for subsequent case management conferences;other issues to be resolved.
Case management orderAfter a case management conference, the case manager may make an order relating to any issue considered at the case management conference.
Request for variation of orderA party may submit a request to the case manager to vary a case management order made under rule 31. The request must be filed with the Board and served on each other party.Content of requestThe request to vary must indicate the reason why the request is being made and must include a statement indicating whether the other parties have consented to the variation.Variation of the orderThe case manager may vary the order if there are compelling reasons to do so.
Joint requestIf a collective society and one or more objectors jointly submit a set of royalty rates and related terms and conditions to the Board and jointly request that the Board approve a proposed tariff based on those royalty rates and terms and conditions, they mustfile a submission in support of their request;file all agreements concluded between the parties that relate to the same uses or substantially the same uses as those covered by the proposed tariff;identify each proposed tariff, or a portion of the proposed tariff, that is to be approved on the basis of the request; andprovide any other information required by the Board.ProcedureOn receiving the request, the Board or the case manager may, if it or they consider it appropriate to do so, establish any procedural steps in the matter or make modifications to any schedule of proceeding.
Interrogatories
InterrogatoriesThe Board or the case manager may make an order to permit interrogatories and to specify their number, type, scope and form, the time limits for their completion and the person to whom they may be addressed.
Case Records
Authorization of filingThe Board or the case manager may authorize or require a person to file a case record, a response to a case record or a reply to a response.ServiceIf a party files a case record, a response to a case record, or a reply to a response with the Board, they must serve it on each other party.Contents of case record or responseThe case record or response to a case record must containa statement of case setting out the party’s position and how they intend to support it;the documentary exhibits on which the party intends to rely, including any expert reports and sworn statements or solemn declarations of lay witnesses, if applicable;a list of the documentary exhibits, if applicable;a list of witnesses the party intends to call and an indication of the time required for the examination of each witness, if applicable; andany other information required by the Board.Contents of replyA reply to a response to a case record must containthe documentary exhibits on which the party intends to rely, including any expert reports and sworn statements or solemn declarations of lay witnesses, if applicable;a list of the documentary exhibits, if applicable;a list of witnesses the party intends to call and an indication of the time required for the examination of each witness, if applicable; andany other information required by the Board.
Filing in an oral hearingUnless otherwise ordered by the Board or the case manager, in the case of an oral hearing, a collective society must file a case record and an objector must file a response to the case record.
Filing and serviceAny case record, any response to the case record and any reply to the response must be filed and served within the time limits set by the Board.Paper copiesUnless the Board orders otherwise, in addition to the electronic filing referred to in rule 11, two paper copies of any case record, response to the case record and reply to the response must be filed with the Board.
Legal briefThe Board may, in response to a request of a party or on its own initiative and on terms that it considers appropriate, allow a party to file a legal brief and allow other parties to file a response to that legal brief.ServiceThe legal brief and any response to the legal brief must be served on each other party.
AmendmentsThe Board may grant leave to amend a statement of issues to be considered, case record, response to a case record, reply to a response to a case record, legal brief or response to a legal brief on the terms the Board considers appropriate.
Written or Oral Hearing
Written or oral hearingThe Board may hold a written or oral hearing in respect of any matter before it.
Oral Hearing
Simultaneous interpretation servicesA party that requires simultaneous interpretation services must submit a request to the Board at least 30 days before the date of the hearing.
Oral hearing open to publicUnless the Board orders otherwise, oral hearings of the Board on the merits of a matter are open to the public.In cameraA party may submit a request to the Board for all or a portion of an oral hearing not to be open to the public. The Board may make any order that it considers appropriate in the circumstances.
Documents received during oral hearingA document that is not part of a case record, a response to a case record or a reply to a response to a case record must not be received as evidence at an oral hearing unless it is to be used only for the purposes of cross-examination of a witness or the Board permits it to be received as evidence.
TranscriptThe Board may cause a transcript, recording or other record of an oral hearing on the merits of a matter to be prepared.
Evidence
Supplemental informationThe Board may, at any time in a proceeding, require a party to provide it with information or documents to supplement the record.
Confidentiality orderAt any time in a proceeding, parties may file a joint request for a confidentiality order with the Board. The request must specify the manner in which the information to be designated as confidential or highly confidential is to be treated and must be accompanied by a proposed confidentiality order.Documents filed before commencementA party may file confidential or highly confidential information before the commencement of a proceeding only with leave of the Board.DisagreementIn the absence of an agreement among the parties, a party may file its own request for a confidentiality order with the Board, together with a proposed confidentiality order and a statement indicating the reasons why the parties could not agree.DesignationOnce a confidentiality order has been made, a party may designate the information that it filed with the Board in the proceeding as confidential or highly confidential.Warranted designationThe Board may, in response to a request from a party or, after giving the parties notice, on its own initiative, determine whether the designation is warranted and make any order that it considers appropriate.Public recordAny document that is filed with the Board in relation to a matter and any related proceeding is placed on the public record, unless the document has been designated as confidential or highly confidential.
LeaveThe Board may order that a party request leave before designating any information as confidential or highly confidential as well as provide an explanation that justifies the designation.
Expert witness reportEvery party who, in a proceeding before the Board, intends to introduce evidence given by an expert witness mustfile with the Board and serve on each other party an expert witness report thatcontains a summary of the expert’s report,describes the qualifications of the expert with respect to the issues addressed in the report,contains the expert’s curriculum vitae,sets out the issues addressed in the report,sets out the expert’s opinion respecting each issue addressed in the report,in the case of a report provided in response to another expert’s report, sets out the points of agreement and disagreement with the other expert’s opinions,sets out the grounds supporting each expressed opinion,describes the facts and assumptions on which the opinions in the report are based,includes any literature, documents and data specifically relied on in support of the opinions expressed,sets out a complete description of the methodology on which the expert has relied, andsets out any caveats or qualifications necessary to render the report complete and accurate, including those relating to any insufficiency of data or research and any issues that fall outside the expert’s field of expertise;file with the Board and serve on each other party any form that is specified by the Board in relation to the expert witness report; andensure that the expert witness is available for examination and cross-examination at the hearing.Refusal of BoardThe Board may refuse to consider expert witness evidence if that evidence addresses issues not mentioned in any document filed under subrule 35(1) or rule 36.
Appointment of independent expertsThe Board may, at any time, by order, appoint one or more independent experts to inquire into and report on any question of fact or give their opinion relevant to an issue in a proceeding.Expert reportThe report of an independent expert is to be placed on the public record of the proceeding.SubmissionsAny party may make submissions to the Board with respect to the terms of the appointment of an independent expert and may file a written response to the independent expert’s report.
SubpoenaThe Board may, in response to a request from a party or on its own initiative, issue a subpoena for the attendance of a witness at the hearing or for the production of documents.
Parties and Proceedings
Severance and ConsolidationAt any time the Board may, on its own initiative or at the request of any party, order that any proceeding be severed or, that any two or more proceedings be consolidated, heard together, heard consecutively or severed.
Request for leave to interveneAny person with an interest in a proceeding that is before the Board and that is in respect of a proposed tariff or an application under subsection 71(1) of the Act, may make a request to the Board for leave to intervene.Filing of requestThe request for leave to intervene must be filed with the Board as soon as feasible after the commencement of a proceeding and served on each other party.Form and contentThe request for leave to intervene must be in writing and must set outthe name and address of the requester and the requester’s authorized representative, if any;an explanation of why the intervention is necessary and the interest of the requester in the matter;a concise statement of the facts on which the request is based;the issues that the requester intends to address; andan indication of how the requester wishes to participate in the proceeding.SubmissionsAny party may make submissions with respect to the request for leave to intervene by filing them with the Board and serving a copy of them on the requester within 15 days after the day on which the served request to intervene is received.Factors considered by the BoardIn determining whether to grant leave to intervene, the Board must considerwhether the requester has an interest in the proceeding that is sufficient to warrant the intervention;whether the requester will present information or submissions that are useful and different;whether the intervention will prejudice any party to the proceeding;whether the intervention will interfere with the fair and expeditious conduct of the proceeding; andany other factor that the Board considers appropriate.Decision of the BoardThe Board may grant or deny the request for leave to intervene and impose any condition or restriction that it considers appropriate, including a restriction on the scope of the intervention.Notice to partiesThe Board must notify the parties to the proceeding of its decision.ServiceSubject to any confidentiality order and any restrictions imposed by the Board under subrule (6), each party must serve on the intervener or its authorized representative any document that is filed by a party after the day on which the parties are notified of the Board’s decision to grant the request for leave to intervene.
Letter of commentAny interested person that does not intend to request leave to intervene but wishes to make comments on the proceeding may file with the Board a letter of comment beforethe day fixed by the Board or the case manager as the final day on which any party may present their written or oral submission; orany other day specified by the Board or case manager.Contents of letterThe letter of comment must containcomments on the proceeding;a description of the nature of the person’s interest in the proceeding; andany relevant information that will explain or support the person’s comments.Copies to parties and on public recordThe Board must provide all parties with a copy of any letter of comment and must place a copy of the letter on its public record of the proceeding.ResponseA party may, within 15 days after the day on which the party receives a letter of comment, file a response with the Board and serve a copy of that response on all parties.Consideration by the BoardA letter of comment that is filed with the Board and any response to that letter must be considered by the Board.StatusA person that files a letter of comment with the Board does not become a party to the proceeding.
Transitional Provisions and Coming into ForceTransitional Provisions
Proceedings commencedThese Rules apply in respect of all proceedings before the Board whether commenced before or after these Rules come into force, except in respect of steps already taken before the coming into force of these Rules.Directive of the BoardAny proceeding commenced or document filed in accordance with a directive of the Board before the coming into force of these Rules is not invalid merely because the proceeding or document does not conform to these Rules.
Coming into Force
RegistrationThese Rules come into force on the day on which they are registered.