Saturday, 5 October 2013

Expertise and the Copyright Board

I spent yesterday afternoon at an excellent conference in Ottawa on the Copyright Pentalogy. I was among the contributors from the collection on the pentalogy edited by Michael Geist who gave presentations. I was also the only non-copyright lawyer who spoke. Regular readers will not be surprised that I urged deference from the courts to the Copyright Board.

This provoked an excited reaction from other presenters and attendees, much of it in the corridors and during the coffee breaks! The vast majority of experts in copyright law do not think much of the Copyright Board's "expertise". They applaud the Supreme Court of Canada's decision to take the reins of copyright law, suspecting that beneath the technical justifications for refusing to defer lies an appropriate disdain for the Copyright Board.

The running theme of the criticism was that members of the Copyright Board are not nominated at all for their expertise -- legal or otherwise -- and have not spent time working in areas which would allow them to develop in-depth knowledge of intellectual property issues.

Another important point -- in fairness to the Copyright Board -- is that it is difficult to persuade people to take on what is seen as a thankless task. The highly technical proceedings before the Copyright Board are quite a few steps removed from the glamour of the Emmys.

Am I shaken from my pro-deference position by these concerns? Not really (yet...).

The first answer to the criticism is that the problem is essentially a political and cultural one. If the government nominated people with greater expertise in copyright law, then the Board would be better off. If people with expertise in copyright law put themselves forward for consideration, then the Board would be better off. But these are political and cultural problems, which should be resolved by the political branches and members of civil society.

The second answer to the criticism is that we should not be too quick to assume that lawyers have some sort of magical prowess when it comes to questions of copyright policy. Over the centuries, legal experts have built up a superstructure of impressive-sounding legal principles and precepts. It must be dreadful to see these mangled by non-lawyers!

But at base, many of the questions that come before the Copyright Board are essentially questions of fact and policy which do not require legal knowledge as much as they require practical wisdom.

Doubtless the Copyright Board often explains decisions based on practical wisdom in terms that fit uneasily (or not at all!) with the body of copyright law built up over the years. But as the Supreme Court of Canada has wisely taught, reviewing courts should not engage in a "line-by-line treasure hunt for error". If a conclusion falls within the range of reasonable outcomes, it should not be disturbed solely because some of the decision-maker's reasoning was suspect.

Unsurprisingly, these "first, kill all the lawyers" responses didn't go over very well yesterday! I wonder what those from other fields think.

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