This document summarizes key Supreme Court of Canada cases on technology and copyright law from 2012. It discusses cases that addressed the communication to the public right, the interpretation of fair dealing, and principles of construction for copyright legislation. It also raises questions about defining downloads vs streams and how predictable fair dealing will be for developing business models.

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September 20, 2012
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2. Cases before the Supreme Court 2
¬ Entertainment Software Association v. Society of Composers,
Authors and Music Publishers of Canada, 2012 SCC 34 (ESA v
SOCAN)
¬ Rogers Communications Inc. v. Society of Composers, Authors and
Music Publishers of Canada, 2012 SCC 35 (Rogers v SOCAN)
¬ Society of Composers, Authors and Music Publishers of
Canada v. Bell Canada, 2012 SCC 36 (SOCAN v Bell)
¬ Alberta (Education) v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 SCC 37 (Access Copyright)
¬ Re:Sound v. Motion Picture Theatre Associations of Canada, 2012
SCC 38 (RE:Sound)
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3. Principles of construction 3
¬ The Act reflects a balance in copyright between promoting the public interest
in the encouragement and dissemination of works and obtaining a just
reward for the creator.
¬ The Act should be construed in a technologically neutral manner. ESA v
SOCAN, Rogers v SOCAN
¬ The Act should be interpreted to extend to technologies that were not or
could not have been contemplated at the time of its drafting. It exists to
protect the rights of authors and others as technology evolves. Rogers v
SOCAN
¬ Treaties to which Canada is a party can be used to construe the Act. Rogers
v SOCAN, ESA v SOCAN
¬ Foreign copyright cases must be scrutinized very carefully before being
applied in Canada because of the different wording and policy
considerations in the Canadian and foreign legislation. Rogers v SOCAN,
Re:Sound
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4. Interpretation of the communication to 4
the public right
¬ In ESA v. SOCAN, the Court ruled that a download of a video game
was not a “communication” within the meaning of Section 3(1)(f).
¬ The right to “communicate” is connected to the right to perform a
work and not the right to reproduce permanent copies of the work.
¬ A “download” “is merely an additional, more efficient way to deliver
copies of the games to customers. The downloaded copy is identical
to copies purchased in stores or shipped to customers by mail, and
the game publishers already pay copyright owners reproduction
royalties for all of these copying activities.”
¬ The “Internet is simply a technological taxi that delivers a durable
copy of the same work to the end user”.
¬ Implications: Using the internet to deliver goods that contain music
e.g., video games, podcasts, movies and TV programs, software, AV
works, books, will not attract separate communication to the public
royalties to SOCAN.
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5. Interpretation of the communication to 5
the public right
¬ In Rogers v. SOCAN, the Court ruled that on-demand transmissions of
music streams as part of online music services are communications that are
“to the public”.
¬ The term “telecommunication” should be broadly construed so as to apply to
communications that do not depend on the types of technology used to
effect the communication.
¬ An on-demand communication of a work to members of the public can be a
communication that is to the public. The Act applies to push as well as to
pull means of transmitting works to the public.
¬ The applicability of the communication to the public right is not dependant
on the arbitrary choice of business models.
¬ Implications: Online streaming services including on-demand online music
services, on-demand video rental/streaming services, TV video on demand,
UGC sites, interactive gaming sites etc, have to pay communication
(performance) royalties as well as reproduction royalties.
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6. Interpretation of the fair dealing 6
defence
¬ The Access Copyright case was a judicial review from a decision of
the Copyright Board which examined whether copying of short
extracts for classroom teaching purposes was a fair dealing. The
Board and the Federal Court of Appeal had found it was not. The
Supreme Court allowed the appeal and remitted the matter back to
the Board to reconsider its decision in accordance with its
construction of the fair dealing defence.
¬ The Bell v. SOCAN case addressed whether previews of music
made available by online music services were a fair dealing for the
purposes of research. The Board and the Federal Court of Appeal
held they were. The Court affirmed that holding.
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7. Interpretation of the fair dealing 7
defence
¬ Fair dealing is a “user right”.
¬ The term “private study” can include students in a classroom setting. The word
“private” in “private study” “should not be understood as requiring users to view
copyrighted works in splendid isolation. Studying and learning are essentially
personal endeavours, whether they are engaged in with others or in solitude.”
Providing excerpts of texts to students in class is private study.
¬ The term “research” must be given a large and liberal interpretation and can
include users listening to previews to decide whether to purchase music.
“Research” is not limited “to creative purposes”. It can be piecemeal, informal,
exploratory, or confirmatory. It can in fact be undertaken for no purpose except
personal interest.”
¬ “The relevant perspective when considering whether a dealing is for an
allowable purpose is that of the user and not the copier. The copier’s purpose
is relevant in the fairness analysis.” “copiers cannot camouflage their own
distinct purpose by purporting to conflate it with the research or study purposes
of the ultimate user”.
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8. Interpretation of the fair dealing 8
defence
¬ Will be easier to establish that the purpose of a dealing is allowable e.g. focus
on users, and interpretations of research and private study.
¬ Will potentially benefit online uses and online service providers.
¬ Will be even broader when C-11 comes into force.
¬ Brings Canada closer to U.S. fair use.
¬ “User rights”, focus on users rather than on copiers, and the ability to
establish fairness by showing a practice or system that is fair, makes fair
dealing extremely broad and unpredictable.
¬ Decisions will affect rights holders.
McCarthy Tétrault LLP / mccarthy.ca

9. Questions for future cases 9
¬ When is a transmission a stream or a download?
¬ Will the new making available right in Bill C-11 cover
downloads and streams?
¬ How predicable/uncertain will it be to develop business
models based on fair dealing?
McCarthy Tétrault LLP / mccarthy.ca

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