The Copyright Pentalogy: Standard of Review and the Courts

Last week the University of Ottawa Press published The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, an effort by many of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. The book is available for purchase and is also available as a free download under a Creative Commons licence. The book can be downloaded in its entirety or each of the 14 chapters can be downloaded individually.

The first section of the book features three chapters focused on important administrative law questions about the standard of review as well as an attempt to place the Supreme Court’s copyright jurisprudence within a larger context. With all five cases originating with the Copyright Board of Canada, the interplay between the Copyright Board and Canada’s appellate courts is at issue throughout the five cases, with two decisions – Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada and Alberta (Education) both specifically discussing standard of review issues.

Graham Reynolds provides a powerful endorsement of the Court’s decisions in his chapter, Of Reasonableness, Fairness and the Public Interest: Judicial Review of Copyright Decisions in Canada’s Copyright Pentalogy. He argues that by failing to adopt a broad, liberal approach to fair dealing in Alberta(Education), the Copyright Board fell outside the range of acceptable outcomes. Therefore, as a matter of law, it was not open to the Copyright Board to reach the decision it did.  Given that conclusion, Reynolds maintains that Abella J applied a reasonableness standard of review in a manner consistent with prior cases.

The implications of Reynolds’ chapter extend to future fair dealing cases, as he notes that “one conclusion that we can draw from Alberta (Education) is that fairness (in the context of fair dealing) is not as discretionary a concept as it appears to be. Alberta (Education) and Bell clarify that the purpose of the Copyright Act requires a broad, liberal approach to fairness. By implication, then, fairness is not broad and open-ended; rather, it is infused with certain expectations with respect to the way in which it is to be applied (namely, in a large and liberal manner).”

Paul Daly is more critical of the administrative law implications of the decisions in his chapter, Courts and Copyright: Some Thoughts on Standard of Review, warning that there is a risk of confusion for lower courts. Daly is particularly critical of the Court’s refusal to accord deference to the Copyright Board. He argues that the Copyright Board is far more than a rate setting tribunal. Rather, it is the body “best positioned to identify and develop the underlying principles of the Act.”

Daly’s chapter also considers the administrative law implications of the decisions beyond intellectual property. He notes that lawyers are likely to try to extend the administrative law findings beyond intellectual property and, in so doing, will undermine the principle of deference in administrative law decisions.

Margaret Ann Wilkinson attempts to place the copyright pentalogy within the broader context of the Court’s jurisprudence in her chapter, The Context of the Supreme Court’s Copyright Cases. She notes that copyright has assumed an increasingly important role within the Court’s docket, yet there has been relatively little scholarly attention paid to how copyright fits within the larger jurisprudence of the Court.

Wilkinson’s study brings together the copyright pentalogy and the five other copyright cases rendered over the past decade: Théberge (2002), CCH (2004), the Tariff 22 decision (2004), Robertson (2006), and the Toblerone decision (2007). Wilkinson traces the judges participating in these decisions, noting that there has been a steady evolution of which judges have participated.  Further, there are no discernable patterns among the common and civil law judges.  Wilkinson identifies the most active Supreme Court justices on copyright, with Abella J having written or co-written reasons for all but one copyright-related case since she joined the Court in 2004.

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