Copyright Day in Canada: Supreme Court Releases 5 Decisions
The Supreme Court of Canada has released its long-awaited decisions in the Copyright Pentalogy - five cases spanning a range of troubling issues in Canadian copyright law, 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.
CIPPIC intervened in all five cases.