Spectre: Canadian Copyright and the Mandatory Tariff - Part II

28(1) IPJ 39 (2015)

61 Pages Posted: 29 Jul 2015 Last revised: 2 Sep 2016

See all articles by Ariel Katz

Ariel Katz

University of Toronto - Faculty of Law

Date Written: July 27, 2015


Canadian copyright collectives and the Copyright Board have in recent years advanced the theory that when the Board certifies collectives’ tariffs (or fixes the royalties in individual cases), those tariffs become mandatory on users. Users have no choice whether to deal with the collective; they must pay the specified royalties as long as they make a single unauthorized use of a work from the collective’s repertoire. Many users, for some strange reason, have also subscribed to this view, despite its extraordinary consequences.

This is a second article in a series of two. The previous article showed that the “mandatory tariff” theory cannot, as a matter of statutory interpretation and in light of the case law, withstand scrutiny. This article shows that in addition, construing the Act in accordance with the “mandatory tariff” theory gives rise to numerous practical challenges, conceptual puzzles, procedural nightmares, and constitutional headaches, each of which should weigh the scales against it. In contrast, the “voluntary licence” theory avoids all these quandaries, and, in addition to being consistent with earlier case law, appears clear, simple, and coherent.

Keywords: copyright, copyright collectives, monopoly, constitutional law, rule of law, Canada

Suggested Citation

Katz, Ariel, Spectre: Canadian Copyright and the Mandatory Tariff - Part II (July 27, 2015). 28(1) IPJ 39 (2015). Available at SSRN: https://ssrn.com/abstract=2636464 or http://dx.doi.org/10.2139/ssrn.2636464

Ariel Katz (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
416-978-8892 (Phone)
416-978-2648 (Fax)

HOME PAGE: http://www.law.utoronto.ca/faculty/katz

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