On December 17, 2015, the Federal Court of Appeal released its decision in Netflix, Inc. v. SOCAN in
which it granted an application for judicial review from the Copyright Board's
decision dealing with a Tariff for musical compositions in audiovisual
webcasts. Netflix opposed the section of the Tariff that imposed a monthly
minimum fee on free trial subscriptions. The Court found that the Copyright
Board breached its duty of procedural fairness with regard to Netflix in
disallowing it from participating in the tariff certification proceedings.
Background
The Society of Composers, Authors and Music Publishers of Canada (SOCAN)
began filing royalty statements for use of musical compositions in audiovisual
works transmitted over the internet in 2007. In 2011, the Copyright Board opened
the tariff certification process; Netflix did not participate at this initial
phase. The Board suspended the proceedings in order to facilitate settlement
negotiations between SOCAN and a group of industry stakeholders. Netflix again
abstained from engaging and did not take part in the negotiations.
Image by Renjith Krishnan |
SOCAN and the other parties to the negotiation reached an agreement and
SOCAN filed a joint request on behalf of all parties to have the Tariff certified
in accordance with their agreement. However, the Tariff's content had changed from
the version initially published in the Canada Gazette. The Tariff’s
first iteration made no distinction between subscription-based and on-demand
services; it also did not provide for compensation in relation to free trial
subscriptions. The new version of the Tariff addressed both.
Netflix's interest in the Tariff fundamentally changed at this point. Unlike
the signatories to the settlement agreement, Netflix's offerings are
subscription-based and it is well known for its one-month free trial. The
agreement, to which Netflix was not a party, therefore became a major concern,
spurring Netflix into action before the Copyright Board.
Since Netflix did not take part in the process from the beginning, the
Board did not invite it to make submissions on the Tariff as proposed following
the agreement; Netflix did so anyway. It argued that the free trials were fair
dealing in light of the Supreme Court of Canada's recent case law relating to
technological neutrality and consumer research fair dealing (ESA v. SOCAN and SOCAN v. Bell respectively).
The Board refused to make Netflix’s submissions part of the record. The
Board's decision to exclude Netflix was based on: 1) the fact that Netflix
raised issues that could not adequately be addressed with the record as it
stood and would require additional evidence; and 2) the fact that none of the
parties to the proceedings had raised those issues prior. The Board also noted
that Netflix had every opportunity to get involved in the proceedings from the beginning
and failed to do so.
Despite this decision, the Board chose to commence a new process based upon
the Tariff resulting from the settlement discussions, citing exceptional circumstances
and the fact that Netflix is such a major player in this space. The Board nonetheless
required parties to make submissions based on the record as it stood and
without introducing new evidence that did not consist of “noncontroversial
facts which shed significant light on the proper course of action".
Netflix made its fair dealing argument and requested leave to lead new
evidence. SOCAN opposed and the Board refused to allow Netflix's request. The
Board ultimately certified the Tariff, more or less as proposed by SOCAN.
Appeal
Writing for the Court, Justice Nadon (Justices Boivin and De Montigny
concurring) held that the Copyright Board erred in failing to allow Netflix to
make its submissions. After briefly noting that the applicable standard of review
was correctness, the Court held that the Board failed to discharge its duty of
procedural fairness vis-à-vis Netflix.
The thrust of the Court’s reasons was that Netflix never had a chance to
participate in the certification process relating to the Tariff as approved by
the Board. SOCAN argued that Netflix abstained from participating because it
chose to rely on other objectors to field its concerns. The Court held that
regardless of whether this was the case, even if Netflix had participated at
the pre-settlement negotiation phase, its submissions would have been in
relation to a proposed tariff that was materially different (especially from
Netflix’s perspective) from the one ultimately certified. In that respect,
Netflix’s failure to participate from the get go could not serve was a waiver
of its right to participate once the Tariff, and stakes, had changed
significantly.
Justice Nadon observed that since the tariff-setting process is one that
concerns the industry as a whole, it is that “industry interest”, and not only
Netflix’s individual interest, that must be safeguarded. He found this to be a
relevant factor in deciding as to whether the Board met its procedural fairness
obligations.
He also took issue with the Board’s assessment of the “ReSound 5 factors”, elements the Board should consider when
deciding whether to certify a tariff based on an agreement between the
petitioning copyright collective and interested stakeholders. In Re:Sound 5 the Board identified two
factors that ought to be evaluated in such a situation: 1) the extent to which
the parties to the agreements can represent the interests of all prospective
users; and 2) whether relevant comments or arguments made by former parties and
non-parties have been addressed.
In Justice Nadon’s opinion, the Board was wrong to conclude that a
negotiation process which excluded Netflix, the largest player in the space,
adequately represented all perspective users’ interests. This is especially
true in this case where the provisions in question were seemingly targeted at
Netflix, and by extension its user-base.
Justice Nadon also found that the Board failed to properly assess the
second Re:sound factor in that it
chose to ignore Netflix’s arguments on fair dealing. Since this factor
contemplates non-parties, Netflix’s lack of participation in the proceedings is
no excuse for failing to consider its arguments.
The Court also failed to accept the Board’s reasoning that ruling on
Netflix’s submissions would have required it to consider evidence that was not
on the record. Justice Nadon noted that while this was true, the only reason
why the required evidence was not on the record was because the Board failed to
admit it. The Board is therefore precluded from relying on a lack of evidence
caused by its failure to accept same.
Nadon J.A. concluded by stating that though administrative tribunals do and
should exercise a broad discretion over their procedural rules, the end goal of
those rules are to assure that justice is done. In his view, failing to allow
Netflix to advance its arguments ran counter to the interest of justice.
Denying their right on procedural grounds is therefore inconsistent with the
very goal that procedure is meant to encourage.
Conclusion
This was a tight and well-reasoned decision. From a practical perspective,
the Board’s decision did not pass the smell test. The proposed Tariff as
published in the Canada Gazette made
no mention of subscriber-based services and free trial subscriptions. The
parties to the settlement negotiations did not offer subscription-based
services or free trials; they were therefore effectively negotiating with
Netflix’s chips. To allow this to stand would not only deny Netflix the
opportunity to defend its interests, it would have allowed Netflix’s
competitors to benefit from a more favourable compensation regime while stifling
their biggest competitor’s business model.
Due to the decision’s proximity to the holiday season, we will have to wait
until the New Year to find out whether SOCAN will ask for leave to appeal to
the Supreme Court of Canada.