The Supreme Court of Canada held the second day of copyright hearings yesterday with Canadian education groups and Access Copyright squaring off over fair dealing from the perspective of copying materials in schools for classroom use. Much like the first day
that involved some discussion that will be rendered largely moot by reforms found in Bill C-11, some of the debate in this case may also change once the bill becomes law. There was considerable focus on the extent to which the fair dealing categories of research and private study can include some element of classroom instruction. That discussion referenced the exclusion of a general education exception, which is not found in the current law but is included in Bill C-11.
As for this particular hearing, the education institutions offered a confused and confusing argument. The problems started from the opening question, with Justice Rothstein opening the door to considering whether short excerpts might be treated insubstantial copying without the need for fair dealing and the schools simply dismissing the possibility. It went downhill from there as the arguments veered between confusing numbers and a failure to address the basic question of why the school’s copying met the six-factor fair dealing test. Access Copyright faced some challenges on the question of whose purpose is relevant when considering fair dealing (it wanted the focus on the teacher, the schools on the student), but the court seems very unlikely to overturn this decision.
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The Supreme Court of Canada heard three of the five scheduled copyright cases yesterday in the first day of an unprecedented focus on copyright at Canada’s highest court. The hearing drew many of Canada’s top copyright lawyers and featured a court that was highly engaged in the morning session but content to allow the lawyers to make their case with scant interruption in the afternoon. The three cases involved the Entertainment Software Association of Canada (whether downloading a video game involves communication to the public of the music in the game), the large telcos (music downloads), and Bell v. SOCAN (song previews as fair dealing).
There were several notable developments and lines of questioning. First, the fair dealing discussion that dominated the Bell v. SOCAN case would be familiar to anyone who has followed the debate on Bill C-11 as the usual suspects trotted out the usual scare tactics. The arguments included SOCAN likening music previews to ice cream samples (and therefore not worthy of being treated as research for fair dealing purposes), CRIA arguing for a “circumscribed definition of fair dealing”, and CSI claiming that including consumer research within fair dealing could put Canada offside its international obligations.
None of these arguments gained any real traction with the court.
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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.
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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 […]
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The Supreme Court of Canada today issued its much anticipated ruling in Crookes v. Newton
, a case that focused on the issue of liability for linking to allegedly defamatory content. The court provided a huge win for the Internet as it clearly understood the significance of linking to freedom of expression and the way the Internet functions by ruling that there is no liability for a mere hyperlink. The key quote from the majority, written by Justice Abella:
I would conclude that a hyperlink, by itself, should never be seen as â€œpublicationâ€ of the content to which it refers.
This is an enormous win for the Internet since it rightly recognizes that links are just digital references that should not be viewed as republication of the underlying content. As Abella states:
Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page. Although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked.
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