Here is a copy of the article with the above title published in the January 20, 2012 edition of The Lawyers Weekly.
In early December, copyright lawyers from across the country descended on the Supreme Court to participate in a cluster of cases that may redefine the scope of copyright in the digital era.
The first case heard, ESA v. SOCAN, put the question directly to the court of how the bundle of rights set out in s. 3 of the Copyright Act ought to be construed in the case of downloads of files containing musical works. A download of a video game could neither be seen nor heard during the transmission. Yet the performance rights collective Society of Composers, Authors and Music Publishers of Canada argued that it was “communicated” to the public even though it also had to be installed on a computer or game console before a single note of music could be heard during game play.
The appellants — Entertainment Software Association and Entertainment Software Association of Canada (associations of publishers and distributors of computer and video games, whom we represented), contended that the real right at issue was the right to reproduce a work in a material form. The respondent SOCAN suggested that the s. 3(1)(f ) right to “communicate a work to the public by telecommunication” covered any transmission of information to the public.
The court spent much of its time trying to ascertain from the parties whether Parliament could have intended to extend what was originally introduced as a broadcast right for radio and television to a right covering distribution of copies of works for later use. Chief Justice Beverly McLachlin asked SOCAN whether a CD still wrapped in its packaging was “communicated” to her; Justice Michael Moldaver asked SOCAN: “Why would Parliament want to put a damper on the most effective mode of communication in the history of mankind?”
The second case heard, Rogers Communications v. SOCAN, focused on the different question of whether a download sent to single subscribers, one at a time, could be “to the public.” The court was actively involved in this portion of the hearing and asked many probing questions to counsel.
The third and fourth cases involved a revisiting of the fair dealing exception discussed at length in CCH Canadian Ltd. v. Law Society of Upper Canada,  S.C.J. No. 12, in which the court held that a custom photocopying made available by the Law Society to authorized legal researchers was for a research purpose and was fair.
In SOCAN v. Bell Canada, SOCAN complained that unauthorized 30-second previews of music downloads were not for the purpose of research and were not a fair dealing. In this appeal, the court lingered on the perceived economic impact of these uses. On the record, the previews were temporary streams of lower quality versions of songs and the court appeared to consider them as an inducement to purchase full copies of the songs, for which rights holders would be paid.
SOCAN attempted to argue two things: first, that ISPs who make previews available to the public are not engaged in a dealing that is for research purposes. This point, which was elaborated on by several interveners has two aspects to it. Research is to be given the dictionary meaning accepted in other Commonwealth cases of some diligent and systematic study. Further, in accordance with all previous cases (including CCH) the ISPs could not claim the exception since they merely facilitated research by users and were themselves not engaged in research. SOCAN also tried to convince the court that the dealing was nor fair. The court appeared to give SOCAN and the interveners who supported them a very rough time. Some members of the court asked whether ISPs engaged in research because they facilitated it. Some also asked whether rights holders and users were both better off with the availability of free previews, thus questioning whether the dealing was fair.
The fourth case, Province of Alberta v. Canadian Copyright Licensing Agency (on which we were counsel for intervening publisher associations) dealt with the question of how fair dealing should apply to the educational setting. In this case the Copyright Board had found that it was not a fair dealing for a teacher to make multiple copies of a work for a class with instructions to read them.
The appellants suggested that this decision was inconsistent with CCH and pressed repeatedly the contention that, since fair dealing is an “individual right,” fairness must be measured from the perspective of an individual student. The court asked the appellants a number of questions examining whether this proposition was sound in view of the aggregate number of copies that were made for the category of works. Justice Moldaver, in particular, wondered whether there could be a fair dealing where there was a “death by a thousand cuts.”
One question raised by the publisher interveners was whether the court would clarify its statement in CCH that the fairness factor of the “effect on the market” is “not the most important factor” in the fairness analysis and that an adverse affect on the market would only suggest unfairness and not make the dealing unfair, as it would be in the U.S. under the fair use doctrine.
The last case heard, Sound v. Motion Picture Theatre Associations of Canada, dealt with the technical but important question of whether the definition of “sound recording” in s. 2 of the Copyright Act excludes remuneration under s. 19 for individual songs forming part of a movie’s soundtrack. The appellant relied heavily on international treaty law and commentary to argue that it had a right to collect. It also argued that a recording would not lose its status as such, except where the soundtrack comprised the entire movie soundtrack (the aggregate of all the sounds in the movie). This interpretation was vigorously disputed by counsel for several respondents.
Collectively, these cases raise important questions that will shape copyright law for many years to come.
*The videos of the appeals can be watched here.