When the Supreme Court of Canada issued its SODRAC v. CBC decision last fall, critics warned that the decision may be anti-technology. The majority of the court ruling included a paragraph in which it suggested that users that invest in new technologies may be required to share some of the benefits with copyright holders:
Where the user of one technology derives greater value from the use of reproductions of copyright protected work than another user using reproductions of the copyright protected work in a different technology, technological neutrality will imply that the copyright holder should be entitled to a larger royalty from the user who obtains such greater value. Simply put, it would not be technologically neutral to treat these two technologies as if they were deriving the same value from the reproductions.
The danger with the decision should be immediately obvious as it creates disincentives to invest in new technologies. I argued in a post on the decision:
linking compensation to user investment does not seem relevant for an analysis of value of copyright works. Indeed, if technological neutrality is a foundation of Canadian copyright law (as everyone agrees), why would the amount of the investment in different technologies designed to achieve the same purposes lead to different amounts of copyright royalties? The user investment and the technology used is a red herring and should be viewed as irrelevant.
It didn’t take long for Access Copyright to use the Supreme Court decision to argue that it is entitled to increased royalties due to educational investment in course management systems and other new technologies for distributing works. The copyright collective told the Copyright Board last week that it plans to argue:
A post-secondary institution that, by reason of its investment in technology that affords it the ability to copy and distribute the content of a copyright-protected work to instructors and students in a more efficient and less costly manner obtains a benefit, the value of which must be appropriately shared with Access Copyright.
Technology neutrality should mean that it is irrelevant which technology is used to disseminate works. Indeed, good policy would create incentives to use more efficient and effective technological solutions. Yet the SODRAC case does the opposite. Depending on how the Copyright Board addresses the issue, technology neutrality could be back before the Supreme Court before too long.