Copyright Pentalogy (Fair Dealing, Tech Neutrality & More)

Copyright Pentalogy (fair dealing, technical neutrality & more)

CIPPIC intervened before the Supreme Court of Canada in five cases -- a Copyright Pentalogy - spanning a range of troubling issues in Canadian copyright law, ranging from the scope of fair dealing in the educational and consumer contexts to the liability implications of offering a download service.

In all, the day was a big win for rational, flexible copyright law:

• Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 - In a 5-4 majority decision, Justice Abella lays out a spirited defense of fair dealing. Key points:

  • the teacher's purpose in making photocopies for students is indivisible from the student's purpose in requesting those copies: facilitating private study and research

  • the Board erred in finding a link between photocopying small excerpts and any decline in textbook sales

  • for determining the amount of the dealing, the specific dealing is what is relevant, not what is happening in aggregate across the educational sector

• Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 34 - Another 5-4 majority. The majority articulated a strong defence of the principle of technological neutrality.

  • "There is no practical difference between a buying a durable copy of the work in a store, receiving a copying the mail, or downloading a an identical copy using the internet."

  • the "fundamental nature" of the right to communicate the work to the public by telecommunication is concerned with performance-based activities

• Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 35 - Given the majority decision in ESA v. SOCAN, the issue of downloads has been ruled moot. However, the majority deals with "on demand" services:

  • a transmission of a single copy of a work to a single individual is not a "communication to the public" within the meaning of the Copyright Act

  • however, a series of repeated transmissions of the same work to different recipients may qualify as a "communication to the public"

  • nothing in the wording of the Copyright Act excludes "pull technologies" from the scope of the right to communicate to the public by telecommunication

• Society of Composers, Authors and Music Publishers of Canada v. Bell Canada , 2012 SCC 36 - The iTunes case:  Is it legal to offer 30 second previews of songs without payment? Yes! The Court unanimously finds that consumer research may qualify as fair dealing:

  • The Court again affirms that the relevant purpose is that of the ultimate user, not the service provider

  • "research" need not be for creative purposes

  • the court noted that there are "reasonable safeguards" in place to ensure that previews are used for the consumer's research purposes

• Re:Sound v. Motion Picture Theatre Associations of Canada , 2012 SCC 38 - The most curious of the 5 cases, in that no one is sure why the Court wished to hear this appeal. The issue was whether performers could get a tariff for music in public performances of movies, despite the Act's clear definition of "sound recording" excluding soundtracks of films. The mystery remains: the Court unanimously dismissed the appeal in 53 short paragraphs.

  • A "soundtrack" is a "sound recording" except when it accompanies a movie.

  • Had Parliament intended pre-existing sound recordings to be exempt from this exclusion, it would have said so.

  • Canada's treatment of sound recordings is consistent with the Rome Convention.