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Supreme Court Shakes the Foundations of Canadian Copyright Law

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Friday July 20, 2012
I have posted several pieces on the recent Supreme Court of Canada copyright decisions (an immediate overview, a piece on why Canada has shifted to fair use, an analysis of the inclusion of a technological neutrality principle, and a discussion on the implication for Access Copyright). My weekly technology law column (Toronto Star version, homepage version) also focused on the decision. It noted that copyright cases only reach the Supreme Court of Canada once every few years, ensuring that each case is carefully parsed and analyzed. Last week, the court issued rulings on five copyright cases in a single day, an unprecedented tally that will keep copyright experts busy for many months to come.

While the initial coverage unsurprisingly focused on the specific outcomes for the litigants, including wins for Apple (no fees for song previews on services such as iTunes), the entertainment software industry (no additional payment for music included in downloaded video games), and the education community (copying materials for instructional purposes may qualify as fair dealing), the bigger story are three broad principles that lie at the heart of the court's decisions.

First, the cases provide an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users' rights. The court first raised the notion of balancing creator rights and user rights in 2004. Publisher and creator groups had urged the court during the December 2011 hearings to backtrack on its user rights approach claiming it was merely a metaphor, yet the court used these cases to re-emphasize its importance. The user rights analysis affects virtually all copyright cases, forcing all courts to ensure that there is a fair balance between the interests of creators and users.

Second, the court endorsed a technology neutral approach to copyright law. For example, in striking down the demand for payment for music included in downloaded video games, it noted that there is "no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet."

Instead, it likened the Internet to a "technological taxi" and warned that additional payments for a downloaded copy violated the principle of technological neutrality. It stated that "principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user."

The court has effectively embedded a technology-neutral principle into the law that will extend far beyond these particular cases, as future litigants will undoubtedly argue that existing exceptions can be applied to new uses of copyright works to ensure technological neutrality.

Third, the court continued its expansion of fair dealing by interpreting it in a broad and liberal manner. In the song previews case, where Apple argued that 30 second song previews could be treated as consumer research and thus qualify for fair dealing, the court agreed, concluding that "limiting research to creative purposes would also run counter to the ordinary meaning of "research", which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest."

Similarly in the education case, the court adopted an expansive view of private study (another fair dealing category) by ruling that it could include teacher instruction and that it "should not be understood as requiring users to view copyrighted works in splendid isolation."

Both decisions point to a very broad approach to fair dealing that can be used by a wide range of businesses and education groups to make the case that innovative uses of copyright materials qualifies as fair dealing and therefore does not require prior permission or compensation. In the months ahead, online providers may offer samples using the same fair dealing analysis, the education community is likely to rethink its approach to copyright licensing, and businesses may argue that their copying is done on behalf of their clients.

When combined with the government's recently enacted Bill C-11 that adds new consumer exceptions and limits damages, Canadian copyright law has undergone an extensive overhaul over the past few weeks with implications that will take years to sort through.
Comments (19)add comment

Shawn H Corey said:

...
"The court has effectively embedded a technology-neutral principle into the law that will extend far beyond these particular cases, as future litigants will undoubtedly argue that existing exceptions can be applied to new uses of copyright works to ensure technological neutrality."

Does that mean that telcos and ISPs can no longer throttle based on content? After all, a bit-torrent packet looks no different than a regular one, at least as far as the delivery goes.
July 20, 2012

Devil's Advocate said:

Not sure where you're going here...
"After all, a bit-torrent packet looks no different than a regular one, at least as far as the delivery goes."

Why even mention "packets" when the discussion is about *copyright*?

Besides, you don't want to even suggest that the two should start to be used in the same sentence, as this would give the maximalists all sorts of really stupid ideas. Can't imagine where the internet would be if every packet was subject to the copyright issue. :(
July 20, 2012

Crockett said:

So here we are ...
The two major rounds of SCC cases on copyright in the last decade have both tilted the scales towards user rights. From the perspective of most here that is certainly a good thing, but where does it lead us?

Often these issues are portrayed as a battle between two camps, creators & users, but the reality is much more complicated. Creators, apart from being plain consumers in their own right, also can use copyrighted works in their own creative endeavors (documentary film makers being the most obvious). These decisions will have vast repercussions for everyone, and it will likely take much experimentation with all the legal wrangling and angst that accompanies it.

From a consumer's perspective, this should enshrine a little harder the concepts of fair dealing both in media rights (shift, backup etc.) as well as compensatory fees that were legally but logically misapplied. The next big question then is of digital locks and the role they play in limiting user rights. It seems from C-11 that the government would prefer market forces to take care of the question, and I expect that view to persist, yet I wonder if these recent decisions will lead to further questions & analysis brought before the SCC in the near future?

Though I do participate in the arts I am not a professional creator that earns their living from the craft, so my own perspective is limited. My background is both in the creative and technology spheres and I somewhat optimistically see the blending of the two as a positive with new opportunities for creators. There is no doubt we are in a sea of change with all the good and bad that entails. I can only hope that new opportunities will outweigh the loss that some may endure & I expect that the indelible creative spirit will continue to triumph over challenges as it always has.
July 20, 2012

Ray Saintonge said:

@ Crockett
Until relatively recently copyright reflected a balancing of rights between creators and publishers. Users lacked the technology to underpin most meaningful rights. Long terms for copyrights did not matter to users who could not use those rights cost effectively. Protecting rights that became a nullity as orphan rights made no difference to owners, but could be a tool for publishers to suppress old works that threatened to compete with more modern and more marketable treatments of the same subject matter.
July 20, 2012

Chris C. said:

At last, some sense out of the copy 'right' madness... But don't rejoice too quickly...
These are indeed good news as it comes to prove that when unfair laws and regulations are pushed upon people, the courts at the top level will actually look at it with lucidity and protect actual people, not the bottom line of corporations.

However, it is very unsettling for the ordinary person that we should have had to go all the way to the Supreme Court to get justice, knowing how expensive judicial costs are.

In other words, the bullies, as usual, will keep winning by intimidation, simply because the common man cannot afford the high costs of the judicial system.

So this is a win, for users, in theory. Regular people who get lawsuits for downloading a few tunes will just have to 'settle' (pay the bribe), as usual.
July 21, 2012

Fred said:

...
I've read the decision carefully, and I am not sure it means quite what is being suggested. Specifically, the SCC emphasized that fair dealing can allow "short" excerpts to "supplement" classroom resources. What exactly that means is now for the Copyright Board to assess, because the SCC gave no guidance on how either of these terms should be interpreted. So we can't assume that AC licensing for K-12 is dead in the water.

Nor can we assume that this decision will play out badly for AC at the post-secondary level. There, and especially with coursepacks - and even more so if there is a commercial aspect to their production and sale - the excerpts are typically longer than in K-12, and very often they don't so much supplement as replace course texts, or are used in addition to and independently from those texts.
July 21, 2012

Crockett said:

...
Fred, I'm not sure if AC will fade away, or even if that would be a good thing or not, but they will certainly have to reconsider a lot of things.

On a related issue, I have heard from a number of creators who are members of AC that they receive on the order of $200 a year or so. Is this fairly representative of most? If so the claim that writers will fade away for that level of loss seems questionable to me. What am I missing?
July 22, 2012

R. Bassett Jr. said:

...
Chris C. said: "In other words, the bullies, as usual, will keep winning by intimidation, simply because the common man cannot afford the high costs of the judicial system."

I'm still waiting for my MP, Daryl Kramp, to reply to email I sent to him in 2008 regarding this issue. His assistant said that it was added to his "reading list", so my only conclusion is that he doesn't care. I mean, he's driven passed my house in the Santa Claus parade and waived at me three years in a row since then. Maybe this year I'll make a sign that says, "Will you reply to my email this year, Mr. Kramp? - R. Bassett Jr.". It's an important issue - frankly, in a practical sense, it's probably thee most important issue regarding copyright.

As far as the Apple song preview thing goes, it's astounding how short sighted (or perhaps, just plain stupid) these music companies can be. It's really quite logical: if I don't know what I am buying, I simply won't buy it. This is why cans of food have labels (with lists of ingredients even!). So giving me a preview of a song or video not only ensures that I am able to find the item I wish to purchase, but it also entices me to purchase other items I had not intended purchasing, simply because it's convenient for me to try them. It's not rocket magic, eh.
July 22, 2012

Joe Hobbs said:

I agree
I think copyright laws are good and very necessary, but in most cases in my opinion exaggerate and make them very strong. Both exaggerate with the law often can not be enforced, and who makes the judgment often lost. There are laws that make thinking much more in the current situation to do things wrong.
Regards,
Joe Hobbs - Recetas Faciles y Rapidas
July 23, 2012

Joe Hobbs said:

I forgot
I would also like to say because I forgot earlier that Canada is very brave in making those laws, I think a very good law only to have to think well.
Regards,
Joe Hobbs - Recetas Faciles y Rapidas
July 23, 2012

Joe Hobbs said:

Canada = EEUU
Do not fear the laws are the laws and must be fulfilled, but this pareciendoce canada increasingly united states, and is losing its own identity, that scares me. To you not?
Regards,
"http://www.recetasfacilesyrapidas.org/"
July 23, 2012

Fred said:

@Crockett
What you are missing is the truth. All authors are are members of AC get a minimum payment. It is partly based on how much they've had published. If very little, then they might get as little as $200. Most get a lot more, with typical payments in the $400 - $800 range. And this is the minimum. If their work appears in any surveys or samples, they will get additional payments. In most cases, the authors who complain the loudest are those whose work is used the least.
July 23, 2012

Crockett said:

...
That's good to know Fred, thanks.
July 23, 2012

Paul Jones said:

...
The only sad thing about these excellent Supreme Court decisions is the extent to which they underline how struggling writers have been feed false information by publishers and their representatives. "But for weak copyright laws and thieving teachers and librarians" say the suits "you would all be rich". So instead of pushing for better cultural policy and stronger contracts with publishers, the starving artist crew has wasted years beating up on educators and paying corporate lobbyist vast sums of money. Maybe now some lights will start to go on that copyright law per se is not their problem, bad advice is.
July 25, 2012

Jim said:

Senior
What astounds me about most of the posts on this blog is the complete disregard for the people who create stuff. The more I follow these threads and the ones on newspaper web sites about copyrights, the more I'm convinced people want to justify their theft of creations like movies and music. "It's the greedy music labels and movie studios bullying me and threatening to sue me if I download a couple of songs". What BS. Those companies aren't perfect and maybe they haven't adapted to the digital world as well as possible but they're still the ones that put up the risk and the capital to create this stuff. You lot just don't want to pay for stuff and rationalize that it's victimless so you don't feel bad. Guess what? The victims are the people who create this and who expect and deserve royalties. The less people pay them, the fewer the number of people that will choose to try to make a career creating art. Have fun watching Twighlight and listening to Bieber in 30 years because there won't be a lot of new culture being produced in the future.
July 27, 2012

Gregg said:

@ Jim
Obviously you do not understand how the lables divvy things up.

It goes beyond the money, but power of control. A label will attack their own musicians and bands. They do NOT deserve to survive in their CURRENT form.

The SCC will (thank gods) force them into the 21st century.
July 28, 2012

Crockett said:

Wait Sir, your paintbrush is much too broad ...
@Jim "You lot just don't want to pay for stuff and rationalize that it's victimless so you don't feel bad."

Jim, I think if you will read a little more thoroughly from the more prominent posters rather than the few 'I just want to download everything' quips you will find a different meme. If those who spend so much time here on this blog just wanted to steal stuff they would hind behind their VPN and nary raise a squeak.

On the other hand people such as myself are interested to see the opportunities from recent technological shifts to create a better market for both users AND creators. I personally pay for all the media I consume unless it is legally offered for free. I support artists who I enjoy and , as much as I am realistically able, stay away from **AA funded media. Not to be mean to those artists but as not to support a system that I see as outdated and barely equitable for the creator. There are much better opportunities and models for creators to work under if the current media cartels were not so intent on digging moats around their castles with their serf labor.

If that makes me a bad person in your eyes then I'm sorry. I'm also sorry for the many good folk in the media industry who are (or will be) upended in this technological shift. Change is not always easy, innovation is not always fair but it is a fact of life that has brought us many great things though not always without challenges.
July 29, 2012

Crockett said:

Where did I hear that before ...?
@Jim "Have fun watching Twighlight and listening to Bieber in 30 years because there won't be a lot of new culture being produced in the future."

"But now we are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. And it is like a great tidal wave just off the shore. This video cassette recorder and the blank tape threaten profoundly the life-sustaining protection, I guess you would call it, on which copyright owners depend, on which film people depend, on which television people depend and it is called copyright."

--- The sound of the media industry represented by Jack Valenti ... completely missing the boat on the huge WEALTH producing technology [VCR] for the very clients he was representing.

It seems history, unfortunately, has a way of repeating itself.
July 29, 2012

grump said:

...
Imagine there's no copyright
It's easy if you try
No DRM below us
Above us, only files
Imagine all the people
Copying easily... (oOo, oOooOO)

Imagine there's no licenses
It isn't hard to do
Nothing to block or censor
And no WIPO too
Imagine all the people
Finding what they neeed... (oOo, oOooOO)

You may say, I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will seed as one

Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world... (oOo, oOooOO)

You may say I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will live as one
August 01, 2012

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