The first involves the scope of fair dealing. In 2004, the Supreme Court ruled that fair dealing, which is the Canadian equivalent of U.S. fair use, is a “user’s right” that should be interpreted in a broad and liberal fashion.
At least two cases will test the boundaries of that decision. In Bell v. SOCAN, the court will be asked to consider whether song music previews on sites such as iTunes can be treated as consumer research and thus potentially qualify as fair dealing. SOCAN, the music copyright collective, argues that it should be paid for the previews.
A second case involving Access Copyright will address fair dealing from the perspective of copying materials in schools for classroom use. This long-running case, which involves the fees paid by kindergarten to Grade 12 schools, also hinges on the scope of fair dealing. Access Copyright and its supporting interveners want the court to rollback its broad interpretation, arguing that fair dealing isn’t a user right at all and that using this term merely confuses the issue.
The second big issue involves the layering of rights in Canada that often forces businesses to pay multiple times for the use of a single work. For example, the ESAC case involves a dispute with SOCAN over whether downloading a video game is a “communication to the public” under the Copyright Act of the music embedded in the game (a similar issue involving music downloads is raised in another case involving Rogers Communications and SOCAN).
The ESAC, which finds itself in the role of user of music in this case, maintains the download is not a communication to the public and expresses concern that to take the alternate approach would “create an extra layer of rights that only applies to the distribution of copies of works.” It warns that requiring payments for the Internet download of a video game would create extra payments “simply because a copy of digital content is delivered over the Internet as a download rather than in physical form.”
The ESAC argues that copyright should be technology neutral in its approach. Ironically, the organization adopts the opposite position when it comes to Canadian copyright reform, as it currently advocates for a two-tier legal framework that grants greater rights for works that include a digital lock. Its lobbying on copyright reform â€“ along with proposed changes in Bill C-11 that will affect the issue of communication to the public â€“ serve as a reminder that the focus may be on the Supreme Court this week, but soon after Parliament will once again grab the copyright spotlight.