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Copyright - Copyright Board of Canada. Society of Composers, Authors and Music Publishers of Canada v. Apple Canada Inc.
In Society of Composers, Authors and Music Publishers of Canada v. Apple Canada Inc. (Fed CA, 2026) the Federal Court of Appeal dismissed, on a motion to strike, a SOCAN-brought JR, this brought against a Copyright Board ruling regarding preliminary case management issues.
Here the court considers the procdedural range of the Copyright Board:B. SOCAN has not exhausted available adequate alternative remedies
[23] Second, even if the Phase I Ruling were amenable to judicial review in principle, SOCAN has not exhausted the available alternative remedies. The Phase I Ruling explicitly expresses its preliminary nature and acknowledges the parties’ right to ask the Board to reconsider a Phase I conclusion if the evidence in Phase II significantly throws that conclusion into doubt.
[24] In this regard, SOCAN alleges that the Board’s safeguard is inadequate and ineffective for two reasons. First, insofar as the Phase I Ruling addresses questions of law, they cannot be thrown into doubt by evidence. Second, the Board’s conclusions will limit the evidence that may be tendered in Phase II.
[25] In response to these points, I note that the Board is the master of its own procedure: Canadian Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58 at para. 171. More specifically, the Board has broad discretion and powers concerning its processes, including the examination of witnesses and the production of documents: Copyright Act, s. 66.7. It also has broad powers to make orders in the context of case management; and the power to vary the rules governing its practice as appropriate, to vary orders made in a proceeding, and to grant leave to amend a statement of issues to be considered and a case record: Copyright Board Rules of Practice and Procedure, SOR/2023-24 at ss. 3(a), 4, 28-32, 39.
[26] As noted, the Board bifurcated the proceeding in consultation with the parties as part of its case management, as it was empowered to do.
[27] Moreover, I see nothing that precludes SOCAN from raising the matters it seeks to raise in its application for judicial review of the Phase I Ruling before the Board, either in case management before Phase II starts (see paragraph 207 of the Phase I Ruling and paragraph 26 of the Phase I Notice), or during Phase II. SOCAN has an alternative remedy that it has not exhausted. To the contrary, the Board has been consistently transparent with the parties through the Phase I Notice and the Phase I Ruling—Phase I conclusions may be revisited should Phase II evidence significantly throw any one of them into doubt. . Bell Canada v. Copyright Collective of Canada
In Bell Canada v. Copyright Collective of Canada (Fed CA, 2021) the Federal Court of Appeal decided a judicial review of a rate case from the Copyright Board of Canada. The case is quite technical and complex but is worthwhile reading for anyone wanting to see how copyright royalty rates are set, and how copyright and telecommunications interrelate in Canada today.
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