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

Regulations are current to 2024-04-01

Copyright Board Rules of Practice and Procedure

SOR/2023-24

COPYRIGHT ACT

Registration 2023-02-10

Copyright Board Rules of Practice and Procedure

P.C. 2023-112 2023-02-10

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;

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,
blank line
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

 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

 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

 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

 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

 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

 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

 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

 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

 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

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

Filing of Documents

Marginal note:Manner of filing

 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

 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

  •  (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

  •  (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

 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

 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

  •  (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

 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

 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

 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

 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

 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

 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

  •  (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

 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

 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

 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

 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

  •  (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

  •  (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.

 

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