Copyright in the Balance This Week at the Supreme Court of Canada

For most of the past hundred years, the Supreme Court of Canada heard the occasional copyright case with significant cases popping up once every ten or twenty years. That started to change in 2001 with a big case reaching Canada’s top court every year or two. While that seemed like a busy schedule, it is nothing compared to the coming week, where the court will hear an unprecedented five copyright cases over the course of two packed days.

My weekly technology law column (Toronto Star version, homepage version) notes the cases feature a who’s who of the Canadian copyright and communications world with the Entertainment Software Association of Canada (ESAC), Canadian Recording Industry Association, Apple, Bell Canada, Rogers Communications, and leading copyright collectives such as SOCAN and Access Copyright among the litigants.

The common theme among the cases is that they all originate with the Copyright Board of Canada. Whether the board is asked to establish tariffs for the communication of music or the copying of materials in schools, its decisions have become highly contested and invariably subject to judicial review.  

It is possible that the Supreme Court is chiefly interested in the administrative law issues raised by the board rather than substantive copyright questions. Should it choose to wade into the copyright concerns, however, two issues jump out as the key ones.

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 – along with proposed changes in Bill C-11 that will affect the issue of communication to the public – 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.

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  1. Sure, they want a two-tier set of rights…except then it doesn’t work for them…typical. So now they’ll be looking for exceptions to the exceptions. Lovely!!!

  2. Fair dealing? Does it serve the public or the private good?
    In our supposedly “Open Source” world of knowledge creation, remix, and colloaborative knowledge production, there are many questions about how to balance the public and the private good served by law. This leaves us with many questions: (1) “Does the public good of freely providing up-to-date and interesting learning materials for K-12 learners trump the priviate good of providing revenue sources for artistic/academic content creators, i.e., is the richness of provision of education for our children more important than returns on investment on creators’ time? Or not?” (2) How many layers or reimbursement do we need to have to ensure that knowledge/media creators can continue their efforts to provide the sorts of great content worth quibbling about?” (3) “And where does this negotiation go in terms of higher education?” So many questions, so few answers, so many deeper concerns about the relationship between learning and knowledge creation to consider… Should these be ethical, legal, or financial questions. It is my hope the Supreme Court will consider the many layers of the issues at hand.

  3. Fair dealing? Does defining it more precisely serve the public or the private good?
    I think there are social justice issues underpinning the debate.