Oops, the Board did it again, and again, and again

On Wednesday, February 12, 2020, the Copyright Board sent out a Notice by email (the Notice has not yet appeared on the Board’s website) correcting an error made in its decision from December 6, 2019 regarding the approval of Access Copyright’s higher education tariffs. This is the second Notice correcting errors in the Board’s decision in this case. The Board had previously issued an Erratum after realizing that an error in calculating interest on the licence fees would have resulted, unintentionally, in doubling these amounts.

The new Notice concerns correction of errors the Board made in describing my involvement in the case. It reads as follows:

In the reasons for its decision in Access Copyright – Post-Secondary Educational Institution Tariffs (2011-2014 and 2015-2017) [CB-CDA 2019-082], the Board made an inadvertent erroneous statement in the factual background section of the decision at paragraph [9]. There is a reference to the Federal Court in the description of a procedural step when the proper reference should have been to the Federal Court of Appeal. The correct, more detailed description of the step in issue is correctly enunciated at paragraph [28] of the reasons of the decision, showing the error is simply an inadvertent slip up in drafting.

The Board is of the view that this is precisely the kind of simple clerical error referenced to by the Federal Court of Appeal at paragraphs 70 to 73 of Canadian Association of Film Distributors and Exporters v. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc., 2014 FCA 235 (CanLII), that can be summarily corrected.

The present Notice is to advise Parties that the said error has been corrected in paragraph [9] of the reasons for the decision posted online on the Board website. This correction does not affect in any way the decision or any element that the Board relied on to reach its decision.

I agree with the Board that the omission of the words “of Appeal” after “Federal Court” could be regarded as “simply an inadvertent slip up in drafting.” That said, it’s quite an embarrassing slip: not only because there is a big difference between the Federal Court and the Federal Court of Appeal, but also because the Federal Court of Appeal is the one where review of Copyright Board matters has taken place for nearly three decades.

The Board, which had no shortage of time, staff and resources to thoroughly proofread its decision before releasing it, should not be making errors of this kind. But at least it’s a good thing that the Board acknowledges its errors and sets to correct them, whether they are highly consequential, like the one regarding the calculation of interest or relatively inconsequential, like the ones the Board just corrected.

I wish this is all I’d have to say about this error and about Wednesday’s Notice.

It did it again

Unfortunately, Wednesday’s Notice of correction is not entirely correct. It is only correct-ish: the error that the Board mentioned indeed occurred and its description is accurate, but it fails to mention a more substantial error that also appeared in the original paragraph 9. Both errors were corrected in the revised decision now available on the Board’s website, but the Board’s Notice mentions only the lesser one of them.

The original paragraph 9 mentioned “an application by a then objector, Professor Ariel Katz, to have the Board refer a question of law to the Federal Court, which was dismissed by the Board and submitted to an unsuccessful review in the Federal Court of Appeal.” 

That statement contained two errors: one was the inadvertent slip of the words “of Appeal”. The other error was the mentioning of an unsuccessful attempt to have the Federal Court of Appeal review the Board’s dismissal of my application. That statement was utterly false. The Federal Court of Appeal never dismissed an application for judicial review of the Board’s decision to reject my request for a reference. Nor could the Federal Court of Appeal dismiss such an application because I never asked the Court of Appeal to do so. In other words, the original paragraph 9 mentioned a made-up case. In its original decision, the Board claimed a victory and implied that I lost a Federal Court of Appeal case that never took place. That was not exactly a “clerical error”. Indeed, it was simply a false and misleading statement.

And again

The reference to a case the never existed, problematic in and of itself, also reflects a failure by those who drafted the decision and reviewed it before it was published to comply with professional rules and conventions that would have prevented the problem from arising.

From the very first days of law school, every law student learns about the importance of providing an accurate citation to every case or other document they mention. By the time they graduate, providing proper citation should become a second nature for those with legal training. By the time they finish articling, a citationless reference to a case should alarm them like a flashing big red flag.

Many legal writing guides emphasize how proper citation helps the reader. But adhering to the rule benefits the writer as well. It provides a quality control mechanism that forces the writer to verify that the case they mention indeed exists and that it says what they think it does. Since one cannot provide proper citation to a source that does not exist, following this rule protects the writer from making embarrassing errors like the one the Board made.

Therefore, the error in the original paragraph 9 wasn’t only the mentioning of a non-existing case, but also the writer’s failure to provide citation. And it was the failure of the writer and anyone who reviewed the decision before its publication to notice the red flag that a citationless reference should have raised.

In sum, the original paragraph 9 contained not just one error but several seriously embarrassing errors. They were not consequential to the ultimate decision itself, but still reflected badly on the Board’s professionalism.

I wish this is all I had to say about those errors. But…

And again

Regrettably, the Board’s reaction to discovering these errors makes it looks worse. Even though the Board posted a revised decision that corrects both errors, Wednesday’s Notice mentions only the minor of the two.

This is awkward. At best, in failing to mention the other error the Board made yet another “inadvertent slip up in drafting”. At worst, mentioning the minor of the two errors looks like a coverup. It may not be the worst coverup in the history of coverups but still a coverup. And like all coverups, they work only so long as the truth remains uncovered. But but a failed coverup makes you look stupid, and causes even an honest error to appear dishonest.

(A side note: It would also have been better if the revised decision would let the reader know that it is a revised decision. First, it is a matter of transparency. Second, since people have already downloaded the original version, there are currently in circulation two seemingly identical versions of the decision and it impossible to tell from the decisions themselves which is the correct one. This can be easily avoided by adding a note to the revised decision).

I wish this is all I’d have to say about the errors in and omissions from the Board’s Decision.

Meanwhile, here is the redlined version of paragraph 9 of Board’s December 6, 2019 decision showing the changes.

And again

Unfortunately, the Board’s Decision from Dec 6, 2019 contains additional omissions concerning my involvement in the proceedings. These omissions are even more troubling than the inaccuracies that the Board has corrected.

In paragraph 17, the Board noted that I “withdrew” from the proceedings on December 20, 2013. This too is only correct-ish.

Dec 20, 2013 was the Objectors’ deadline for filing their Statements of Case (i.e., their arguments and all supporting evidence), responding to Access Copyright’s Statement of Case filed a couple of months earlier.

In a letter I sent to the Board on that day, I noted that I had concluded with much regret that my ability to assist the Board in those proceeding was reaching its end. I explained that without the active participation of AUCC and ACCC (which represent virtually all of the post-secondary university and college administrations in Canada), the hearing had become a de facto default proceeding. I emphasized that it was not the fault of the Board that the AUCC and ACCC chose to withdraw, nor was it its fault that adequately confronting Access Copyright’s case and the millions that it had surely spent on it required resources that I did not have, and time that I could no longer afford spending.

While I wrote that I would not make additional submissions, at no point did I say that I withdrew my objection to the proposed tariff. Instead of filing a fully-blown Statement of Case, my letter included appendix with evidence concerning the critical issue of Access Copyright’s repertoire and the notable gap between what Access Copyright claims it to be and what it actually is. That appendix included the responses that Access Copyright provided to my interrogatories, various documents it provided with those responses and in its Statement of Case. I also provided comments directing the Board’s attention to what that evidence shows and what conclusions may be drawn from it.

I requested that the evidence and my comments be part of the record of the case, noting that this would be consistent either with an earlier ruling of the Board or with section 2 of the Board’s Directive on Procedure, allowing anyone to comment in writing on any aspect of these proceedings.

I also asked the Board to rule that some of the document, which Access Copyright had designated as confidential, should not be treated as such and be put on the public record unredacted.

Following this submission, the Board requested Access Copyright’s response, allowed me to respond to the response, and on Feb 13, 2014 issued a ruling on the confidentiality issue. The Board ordered that a non-redacted version of my letter and some documents be put on the public record unredacted (meaning that the unredacted confidential documents were part of the record but not publicly available).

Nevertheless, the Board’s Dec 6, 2019 Decision, which otherwise describes the evidence and arguments made by the parties, does not discuss any of the evidence I submitted or the accompanying comments I provided. Even though my submission became part of the record that the Board had to consider, the Board failed to even mention it. This failure makes it impossible to tell if the Board even considered the submission and whether it paid any attention to the evidence.

Since the Board’s Decision treats my submission as if it never existed, I cannot tell why the Decision ignores them. I can think of some possible explanations, none of them is satisfactory:

  • Maybe the Board “forgot” about the submission and about the fact that it was made part of the record of this case. It may sound absurd, but I think this might be the most likely explanation given the sloppiness that the other errors reflect. This, of course, is not a justification. It reflects quite badly on the Board’s professionalism and raises questions about its record keeping practices and its decision-making process. If the Boards forgot about my submission in this case, what else it might have forgotten in this or in other cases?
  • Maybe the Board thought that since I said that I would not be filing a Statement of Case I was no longer an Objector, in which case my submission could be ignored. If this were the case, then the Board should have mentioned the submission and explained why it chose to ignore it. In any event, this cannot be a valid justification because I requested that my submission be part of the record and the Board so ordered. Once the Board accepted my submission and ordered that it be put on the record, the Board had to consider it whether I was an Objector or just a member of the public making comments in writing pursuant to pursuant to section 2 of the Board’s Directive on Procedure.
  • Maybe the Board did consider my submission but concluded that it had been irrelevant to the questions before it. If that were the case, then the Board ought to have said so. But this could not be the case. My submission focused on one crucial aspect of the case, Access Copyright’s repertoire, an issue that it discussed extensively, once in paragraphs 126-155 and then in paragraphs 261-267 of the Board’s Decision. Readers are invited to read my submission and witness its relevance to the issues the Board discussed.
  • Lastly, maybe the Board considered my submissions, thought they were relevant, agreed with some of my arguments but rejected others. Maybe it rejected all of them, or maybe it agreed with my analysis but balked at accepting its implications. Either way, if the Board considered my submissions, it ought to have explained whether it accepted or rejected them and why.   

Be the reasons for ignoring my submission and the evidence I provided as they may. The point is that the Board’s Decision failed to mention them. Maybe it considered them or maybe it did not. Either way, the failure the mention them raises questions about the Board’s professionalism, hurts its credibility, and undermines the trust necessary for allowing it to perform its public mandate. 

For now, this is all I have to say about the errors and omissions in the Board’s decision. I will have more to say about serious problems in the substance of the decision, but this will have to wait for another day.

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