Copyright coming to the Supreme Court of Canada

November 25th, 2011 by Barry Sookman Leave a reply »

The copyright bar and the Supreme Court are gearing up for two big days of copyright appeals. The five appeals are being heard back to back on December 6 and 7, 2011.

Earlier today the Court circulated the draft schedule for the arguments. It lists all the parties, the interveners, the lawyers involved, and the order in which the cases are going to be heard. It is going to be a very interesting two days for copyright in Canada.

The Court has published case summaries. In part, the summaries describe the upcoming cases as set out below. The factums of the parties can be accessed using the links below. The interveners briefs in the two fair dealing cases can be accessed here.

Society of Composers, Authors and Music Publishers of Canada, et al. v. Bell Canada, et al.

Whether providing previews consisting of excerpts of works is fair dealing for the purpose of research that does not infringe copyright.

Entertainment Software Association, et al. v. Society of Composers, Authors and Music Publishers of Canada

Whether a download of a video game that includes music is a communication of that music to the public by telecommunication within the meaning of para. 3(1)(f) of the Copyright Act, R.S.C. 1985, c. C-42 – Whether standard of reasonableness or standard of correctness applies on judicial review of Copyright Board’s decision that a download of a video game that includes music is a communication of that music to the public by telecommunication.

Rogers Communications Inc., et al. v. Society of Composers, Authors and Music Publishers of Canada

Test for when right to communicate a work to the public by telecommunication is engaged – Standard of review of interpretation of s. 3 – Balance between court’s supervisory powers and legislative supremacy – Scope of the supervisory role of the courts – Consistency in meaning given to exclusive rights granted by s. 3.

Province of Alberta as represented by the Minister of Education;, et al. v. Canadian Copyright Licensing Agency Operating as “Access Copyright”

Fair dealing — Copyright Board approving tariff that included as remunerable use the photocopying of excerpts primarily from textbooks for use in classroom instruction for students in kindergarten to grade 12 — Whether such copying constitutes fair dealing — Whether the Federal Court of Appeal erred in upholding the Board’s finding that it is the copier’s purpose, and not the user’s purpose, that is the relevant consideration for fair dealing — Whether the Federal Court of Appeal erred in upholding the Board’s decision to look at copying in aggregate, and not individually, in determining fairness — Whether the Federal Court of Appeal erred by not applying the “not restrictive” interpretation that fair dealing warrants under the decision of this Court in CCH v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 — Whether the Federal Court of Appeal erred in applying the standard of reasonableness, and not correctness, in its judicial review — Is there an inconsistency between the Federal Court of Appeal decision in the present case and in Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2010 FCA 123, [2010] F.C.J. No. 570 — Sections 29, 29.1 and 29.4 of the Copyright Act, R.S.C. 1985, c. C 42 (the “Act”).

Re:Sound v. Motion Picture Theatre Associations of Canada, et al.

Whether recording artists and record companies, as performers and makers of music, are entitled to equitable remuneration under s. 19 of the Copyright Act, R.S.C. 1985, c. C-42, when their music is played in movies and on television – Whether the definition of “sound recording” in s. 2 of the Copyright Act precludes equitable remuneration under s. 19 for pre-recorded music forming part of a soundtrack.

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