The Supreme Court of Canada’s latest copyright decision – SOCAN v. Entertainment Software Association – affirms yet again that technological neutrality is a foundational element of the law and notably emphasizes that “copyright law does not exist solely for the benefit of authors.” My colleague Jeremy de Beer was an active participant in the case, writing an expert opinion during the Copyright Board phase of the case which reflects the approach that the court ultimately adopted. He joins the Law Bytes podcast to discuss the evolution of music distribution online, this latest case and the court’s commitment to copyright balance, as well as what might come next in the seemingly never-ending battle over Canadian copyright law.
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The Law Bytes Podcast, Episode 136: Jeremy de Beer on SOCAN v. ESA, the Supreme Court’s Latest Endorsement of Copyright Balance and Technological Neutrality
Supreme Court of Canada on Copyright: “Copyright Law Does Not Exist Solely for the Benefit of Authors”
For much of the past two decades, copyright groups have steadfastly sought to deny what the Supreme Court of Canada has repeatedly endorsed, namely that the purpose of Canadian copyright law is to serve the public interest by balancing users’ and authors’ rights. Last week provided the latest episode in the ongoing series as the Court delivered yet another strong affirmation on the importance of copyright balance and the role of technological neutrality, confirming that “[c]opyright law does not exist solely for the benefit of authors.” The decision – SOCAN v. Entertainment Software Association – can read on at least four levels: (1) as a repudiation of SOCAN’s effort to establish a new, additional royalty for the “making available” of music; (2) as a confirmation of the importance of technological neutrality and copyright balance; (3) as an example of the flexibility associated with implementing the WIPO Internet treaties, and (4) as the undeniable entrenchment of Canadian copyright jurisprudence that now features deeply layered precedents on users’ rights.
The Supreme Court of Canada heard arguments yesterday in the copyright case of CBC v. SODRAC. While the case was ultimately about whether CBC should be required to pay royalties for incidental copies necessary to use new broadcast technologies, at stake was something far bigger: the future of technological neutrality under Canadian copyright law.
CBC argued that technological neutrality means that it should not pay for incidental copies since it already pays for the use of music in broadcasts. The incidental copies – copies which are made to create the final broadcast version of a program (including copies from the master to a content management system or other internal copies to facilitate the broadcast) – do not generate revenue and are simply made to facilitate use of the music that is paid for through a licence. SODRAC, a Quebec-based copyright collective, countered that CBC had always paid for these copies and that the CBC argument was the reverse of technological neutrality, since it wanted to avoid payment in the digital world for copies that were being paid for with earlier, analog technologies.
The case emerged as an important one when the question of the meaning of technological neutrality took centre stage. That elicited interveners such as Music Canada, which argued for a narrow interpretation of the principle, claiming that it was just an “interpretative metaphor” (similar arguments about users’ rights being no more than a metaphor were rejected by the Supreme Court in 2012). The danger in the case from a technological neutrality perspective is that the Supreme Court could roll back its finding that technological neutrality is a foundational principle within the law. Moreover, if the court were to rule that all copies – no matter how incidental – are copies for the purposes of the Copyright Act, there would be the very real possibility of payment demands for the myriad of copies that occur through modern technologies.
The Entertainment Software Association has applauded the RCMP for its work in targeting infringing activities at the Pacific Mall, just north of Toronto. The actions come despite repeated unfounded claims that Canada is a "piracy haven."
Earlier this week, I wrote about the mounting lobbyist pressure to water down Bill C-27, Canada's anti-spam bill. The pressure in recent hearings has been intense – Amazon was generally supportive of the bill but still sought an implied consent for existing customers for five to seven years (in other words, seven years to simply ask if the customer wants to receive future emails), the Entertainment Software Association and the Canadian Intellectual Property Council teamed up to warn that the bill would put Canada at a competitive disadvantage, and the Canadian Bankers Association called on the Industry Committee to completely gut the bill by dropping opt-in consent and the private right of action provisions.
Yesterday I attended the last committee meeting before clause-by-clause review as government officials appeared to propose reforms and address committee concerns. The meeting showed the lobbying efforts are bearing fruit as officials proposed 40 changes to the bill. While some are technical, there are several significant suggested reforms. Moreover, the lobbying continued, as Liberal and Bloc MPs appeared to work actively to raise lobbyist issues.
First, the proposed reforms, which include: