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

Appeared in the Toronto Star on December 4, 2011 as Copyright in the Balance at the Supreme Court

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.

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.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at or online at

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One Comment

  1. 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.”

    Right. But there’s simple distribution like the Humble Indie packs or games downloaded and authorized (DRM) through Steam, but there are also on-line games (MMORPGs, flash-based games) that include music, and more recently services like OnLive where the game runs on their platform and I get the content streamed to my system. This can be tricky but technology progresses; let’s hope SCoC will keep this in mind.