Copyright Board Rules of Practice and Procedure (SOR/2023-24)

Whereas, under subsection 66.6(2)Footnote ^a of the Copyright ActFootnote ^b, 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;

• Return to footnote ^aS.C. 2018, c. 27, s. 294

• Return to footnote ^bR.S., c. C-42

Therefore, the Copyright Board makes the annexed Copyright Board Rules of Practice and Procedure under section 66.6Footnote ^a of the Copyright ActFootnote ^b.

Ottawa, January 13, 2023

La vice-présidente et première dirigeante de la Commission du droit d’auteur, Nathalie Théberge Vice-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 66.6Footnote ^a of the Copyright Act,Footnote ^b approves the making of the annexed Copyright Board Rules of Practice and Procedure by the Copyright Board.

PART 1Definitions, Application and Interpretation

Definitions

Marginal note:Definitions

1 The following definitions apply in these Rules.

Act

Act means the Copyright Act. (Loi)

Chair

Chair means the Chair of the Board appointed under subsection 66(1) of the Act. (président)

intervener

intervener means a person granted leave by the Board to intervene in a proceeding before the Board. (intervenant)

member

member means a member appointed under subsection 66(1) of the Act. (commissaire)

objector

objector means a person that files an objection to a proposed tariff. (opposant)

party

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

Marginal note:Application

2 These Rules apply to any matter in relation to

• (a) a proposed tariff filed by a collective society with respect to rights under section 3, 15, 18, 19 or 21 of the Act;

• (b) 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;

• (c) a proposed tariff filed by a collective society with respect to levies referred to in section 82 of the Act; and

• (d) an application to fix royalty rates or any related terms or conditions in individual cases under subsection 71(1) of the Act.

Interpretation

Liberal Interpretation

Marginal note:Varying, supplementing or dispensing with rules

3 As 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 to

• (a) deal with matters informally and expeditiously;

• (b) allow for meaningful participation of persons with an interest in a matter before the Board; or

• (c) deal with special circumstances.

Marginal note:Directions

4 The 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

Marginal note:Days not counted

5 The 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.

Marginal note:Definition of business day

6 In 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.

Marginal note:Time limit

7 If 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.

PART 2General

Defect in form

Marginal note:Validity

8 No document or proceeding under these Rules is invalid by reason solely of a defect in form or technical irregularity.

Non-compliance

Marginal note:Non-compliance

9 If a party does not comply with these Rules, an order or direction of the Board, the Board may

• (a) stay the proceeding until it is satisfied that the party has complied with the Rules, the order or the direction;

• (b) decide the matter only on the basis of the information on the record; and

• (c) take any measure that it considers fair in the circumstances.

Quorum

Marginal note:Quorum

10 In all proceedings before the Board, the quorum is one member.

Filing of Documents

Marginal note:Manner of filing

11 Unless otherwise provided by these Rules, a document to be filed with the Board must be filed by the electronic means specified by the Board.

Marginal note:Date of filing

12 The 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

Marginal note:Manner of service

• 13 (1) Service 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.

• Marginal note:Address for service

  (2) The address for service is

  • (a) the 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; or

  • (b) in 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.

• Marginal note:Date and time of service

  (3) A 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.

• Marginal note:Service by email

  (4) In 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.

• Marginal note:Receipt after 17:00

  (5) A 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.

• Marginal note:Proof of service

  (6) If 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.

• Marginal note:Proof of service — email

  (7) Absent evidence to the contrary, the email referred to in subsection (1) constitutes proof of service of a document.

Language

Marginal note:Documents and proceedings

• 14 (1) Subject 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.

• Marginal note:Translation

  (2) A 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.

PART 3Filing of Proposed Tariff

Notice of Grounds for Proposed Tariff

Marginal note:Filing of notice of grounds

15 A 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.

Marginal note:Contents of notice

16 The notice of grounds for the proposed tariff must

• (a) describe the uses covered by the proposed tariff;

• (b) set out the basis for the proposed royalty or levy rates; and

• (c) include any other information required by the Board.

Other Documents

Marginal note:Filing of certain documents

• 17 (1) A 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.

• Marginal note:Publication of notice

  (2) The Board must, in the manner that it sees fit, publish the notice of grounds for the proposed tariff and the comparative document.

• Marginal note:Additional information

  (3) A 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

Marginal note:Filing of notice of grounds for objection

18 A 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.

Marginal note:Contents of notice of grounds for objection

19 The notice of grounds for objection must, as applicable,

• (a) 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;

• (b) set out the grounds for objection to the proposed tariff; and

• (c) include any other information required by the Board.

Marginal note:Additional information

20 At 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.

Marginal note:Timing of reply

21 A 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.

Marginal note:Sufficient information

22 If 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.

PART 4Conduct of Proceedings

Commencement of Proceedings

Marginal note:Notification

23 The Board must, in the manner it sees fit, publish a notice when it commences a proceeding.

Statement of Issues To Be Considered

Marginal note:Joint statement of issues to be considered

• 24 (1) Subject 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.

• Marginal note:Time limit

  (2) The 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.

Marginal note:Contents of statement

25 The statement of issues to be considered must contain

• (a) a description of the issues to be considered;

• (b) 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; and

• (c) any other information required by the Board.

Marginal note:Lack of agreement

26 If 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 contains

• (a) a description of the issues to be considered and the party’s position regarding each of those issues;

• (b) if applicable, a proposal to consolidate the proceeding with one or more other proceedings with respect to other proposed tariffs filed with the Board; and

• (c) any other information required by the Board.

Marginal note:Consideration of other Issues

27 The Board may consider relevant issues other than those identified by the parties in the statement of issues to be considered.

Case Management

Marginal note:Definition of case manager

28 For 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.

Marginal note:Powers of case manager

• 29 (1) In 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.

• Marginal note:Participation in decision on merits

  (2) The assignment of a member as the case manager does not prevent that member from participating in the decision on the merits of the matter.

Marginal note:Case management conference

• 30 (1) The case manager may, during the course of a matter, conduct one or more case management conferences.

• Marginal note:Topics to be considered

  (2) During a case management conference, any of the following topics may be considered:

  • (a) the clarification, simplification and elimination of issues to be considered;

  • (b) opportunities for an agreement to be concluded on any of the issues to be considered;

  • (c) the issue of whether a question of law should be determined by the Board;

  • (d) the official language the parties will use during the proceeding;

  • (e) the issue of whether interrogatories should take place and their parameters as applicable;

  • (f) the filing of evidence;

  • (g) any questions of confidentiality;

  • (h) the parameters of any expert testimony, including the possibility of experts meeting before or after a hearing to answer questions posed by the Board;

  • (i) a proceeding schedule and the expected duration of the hearing;

  • (j) the documents to be filed with the Board before a hearing, including legal briefs and case records;

  • (k) the information and documents to be submitted to the parties at a hearing;

  • (l) a timetable for subsequent case management conferences;

  • (m) other issues to be resolved.

Marginal note:Case management order

31 After a case management conference, the case manager may make an order relating to any issue considered at the case management conference.

Marginal note:Request for variation of order

• 32 (1) A 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.

• Marginal note:Content of request

  (2) The 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.

• Marginal note:Variation of the order

  (3) The case manager may vary the order if there are compelling reasons to do so.

Marginal note:Joint request

• 33 (1) If 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 must

  • (a) file a submission in support of their request;

  • (b) 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;

  • (c) identify each proposed tariff, or a portion of the proposed tariff, that is to be approved on the basis of the request; and

  • (d) provide any other information required by the Board.

• Marginal note:Procedure

  (2) On 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

Marginal note:Interrogatories

34 The 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

Marginal note:Authorization of filing

• 35 (1) The 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.

• Marginal note:Service

  (2) If 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.

• Marginal note:Contents of case record or response

  (3) The case record or response to a case record must contain

  • (a) a statement of case setting out the party’s position and how they intend to support it;

  • (b) 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;

  • (c) a list of the documentary exhibits, if applicable;

  • (d) a list of witnesses the party intends to call and an indication of the time required for the examination of each witness, if applicable; and

  • (e) any other information required by the Board.

• Marginal note:Contents of reply

  (4) A reply to a response to a case record must contain

  • (a) 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;

  • (b) a list of the documentary exhibits, if applicable;

  • (c) a list of witnesses the party intends to call and an indication of the time required for the examination of each witness, if applicable; and

  • (d) any other information required by the Board.

Marginal note:Filing in an oral hearing

36 Unless 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.

Marginal note:Filing and service

• 37 (1) Any 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.

• Marginal note:Paper copies

  (2) Unless 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.

Marginal note:Legal brief

• 38 (1) The 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.

• Marginal note:Service

  (2) The legal brief and any response to the legal brief must be served on each other party.

Marginal note:Amendments

39 The 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

Marginal note:Written or oral hearing

40 The Board may hold a written or oral hearing in respect of any matter before it.

Oral Hearing

Marginal note:Simultaneous interpretation services

41 A party that requires simultaneous interpretation services must submit a request to the Board at least 30 days before the date of the hearing.

Marginal note:Oral hearing open to public

• 42 (1) Unless the Board orders otherwise, oral hearings of the Board on the merits of a matter are open to the public.

• Marginal note:In camera

  (2) A 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.

Marginal note:Documents received during oral hearing

43 A 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.

Marginal note:Transcript

44 The Board may cause a transcript, recording or other record of an oral hearing on the merits of a matter to be prepared.

PART 5Evidence

Marginal note:Supplemental information

45 The Board may, at any time in a proceeding, require a party to provide it with information or documents to supplement the record.

Marginal note:Confidentiality order

• 46 (1) At 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.

• Marginal note:Documents filed before commencement

  (2) A party may file confidential or highly confidential information before the commencement of a proceeding only with leave of the Board.

• Marginal note:Disagreement

  (3) In 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.

• Marginal note:Designation

  (4) Once 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.

• Marginal note:Warranted designation

  (5) The 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.

• Marginal note:Public record

  (6) Any 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.

Marginal note:Leave

47 The 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.

Marginal note:Expert witness report

• 48 (1) Every party who, in a proceeding before the Board, intends to introduce evidence given by an expert witness must

  • (a) file with the Board and serve on each other party an expert witness report that

    • (i) contains a summary of the expert’s report,

    • (ii) describes the qualifications of the expert with respect to the issues addressed in the report,

    • (iii) contains the expert’s curriculum vitae,

    • (iv) sets out the issues addressed in the report,

    • (v) sets out the expert’s opinion respecting each issue addressed in the report,

    • (vi) 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,

    • (vii) sets out the grounds supporting each expressed opinion,

    • (viii) describes the facts and assumptions on which the opinions in the report are based,

    • (ix) includes any literature, documents and data specifically relied on in support of the opinions expressed,

    • (x) sets out a complete description of the methodology on which the expert has relied, and

    • (xi) sets 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;

  • (b) 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; and

  • (c) ensure that the expert witness is available for examination and cross-examination at the hearing.

• Marginal note:Refusal of Board

  (2) The 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.

Marginal note:Appointment of independent experts

• 49 (1) The 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.

• Marginal note:Expert report

  (2) The report of an independent expert is to be placed on the public record of the proceeding.

• Marginal note:Submissions

  (3) Any 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.

Marginal note:Subpoena

50 The 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.

PART 6Parties and Proceedings

Marginal note:Severance and Consolidation

51 At 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.

Marginal note:Request for leave to intervene

• 52 (1) Any 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.

• Marginal note:Filing of request

  (2) The 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.

• Marginal note:Form and content

  (3) The request for leave to intervene must be in writing and must set out

  • (a) the name and address of the requester and the requester’s authorized representative, if any;

  • (b) an explanation of why the intervention is necessary and the interest of the requester in the matter;

  • (c) a concise statement of the facts on which the request is based;

  • (d) the issues that the requester intends to address; and

  • (e) an indication of how the requester wishes to participate in the proceeding.

• Marginal note:Submissions

  (4) Any 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.

• Marginal note:Factors considered by the Board

  (5) In determining whether to grant leave to intervene, the Board must consider

  • (a) whether the requester has an interest in the proceeding that is sufficient to warrant the intervention;

  • (b) whether the requester will present information or submissions that are useful and different;

  • (c) whether the intervention will prejudice any party to the proceeding;

  • (d) whether the intervention will interfere with the fair and expeditious conduct of the proceeding; and

  • (e) any other factor that the Board considers appropriate.

• Marginal note:Decision of the Board

  (6) The 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.

• Marginal note:Notice to parties

  (7) The Board must notify the parties to the proceeding of its decision.

• Marginal note:Service

  (8) Subject 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.

Marginal note:Letter of comment

• 53 (1) Any 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 before

  • (a) the day fixed by the Board or the case manager as the final day on which any party may present their written or oral submission; or

  • (b) any other day specified by the Board or case manager.

• Marginal note:Contents of letter

  (2) The letter of comment must contain

  • (a) comments on the proceeding;

  • (b) a description of the nature of the person’s interest in the proceeding; and

  • (c) any relevant information that will explain or support the person’s comments.

• Marginal note:Copies to parties and on public record

  (3) The 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.

• Marginal note:Response

  (4) A 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.

• Marginal note:Consideration by the Board

  (5) A letter of comment that is filed with the Board and any response to that letter must be considered by the Board.

• Marginal note:Status

  (6) A person that files a letter of comment with the Board does not become a party to the proceeding.

PART 7Transitional Provisions and Coming into Force

Transitional Provisions

Marginal note:Proceedings commenced

• 54 (1) These 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.

• Marginal note:Directive of the Board

  (2) Any 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

Marginal note:Registration

55 These Rules come into force on the day on which they are registered.