As for this particular hearing, the education institutions offered a confused and confusing argument. The problems started from the opening question, with Justice Rothstein opening the door to considering whether short excerpts might be treated insubstantial copying without the need for fair dealing and the schools simply dismissing the possibility. It went downhill from there as the arguments veered between confusing numbers and a failure to address the basic question of why the school’s copying met the six-factor fair dealing test. Access Copyright faced some challenges on the question of whose purpose is relevant when considering fair dealing (it wanted the focus on the teacher, the schools on the student), but the court seems very unlikely to overturn this decision.
The second hearing of the day involved a fight between broadcast distributors and the copyright collective Re:Sound over the “performance” of music in movie and TV show soundtracks. Re:Sound’s counsel spent much of his hour assuring the court that the statutory interpretation issues were very clear, yet ducked so many questions that a frustrated Justice Abella was left to joke that “you’re lucky I have nothing else to do this afternoon.”
One of the most interesting exchanges occurred late in the day, as Chief Justice McLachlin discussed the creative process and noted that works often involve bringing together several other works into a new whole. When counsel responded that this was a compilation, the Chief Justice replied that it might actually be an entirely new work, bringing the issue of remix and transformative works to the Supreme Court of Canada.