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No. 26
September 2012
International Association for the Protection of Intellectual Property
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Five Copyright Decisions from the Supreme Court of Canada
Stéphane E. Caron, Gowling Lafleur Henderson LLP, Ottawa, Canada

In July 2012, the Supreme Court of Canada released reasons in five appeals addressing the communication of musical works online; the rights of performers in soundtracks; and, the application of fair dealing exceptions in the classroom and in online commerce.

In Entertainment Software Association v. Society of Composers, Authors & Music Publishers of Canada (2012 SCC 34), the Court held that downloading a permanent copy of a video game containing a musical work did not amount to a “communication” of the musical work within the meaning of the Copyright Act. It distinguished downloads from cases where musical works are delivered to the user by streaming technologies. Noting that downloading creates a durable copy of the digital file on the user's computer, the Court drew a parallel with the purchase of a physical recording of the musical work. Applying principles of technological neutrality, the Court concluded that the downloading of musical works did not constitute a “communication” since the Internet was simply a “technological taxi that delivers a durable copy of the same work to the end user”.

In Rogers Communications Inc. v. Society of Composers, Authors & Music Publishers of Canada(2012 SCC 35), the Supreme Court of Canada confirmed the principle that the streaming of musical works over the Internet is a communication “to the public”. The Court observed that copyright protection was not dependent on the technicalities of the chosen method of point to point transmission. It concluded that where “a series of point to point communications of the same work to an aggregation of individuals is found to exist, it matters little for the purposes of copyright protection whether the members of the public received a communication in the same or in different places, at the same or different times or at their own or the sender's initiative”.

In Society of Composers, Authors & Music Publishers of Canada v. Bell Canada (2012 SCC 36) and Alberta (Education) v. Canadian Copyright Licensing Agency (2012 SCC 37), the Court dealt with the scope of the fair dealing exception in the contexts of musical previews and copies made by teachers in the classroom. In both cases, the Court reiterated the key role of fair dealing in achieving the proper balance between protection and access to copyright protected works. In the case of musical previews, the Court found that the use of short excerpts to assist with the purchase of music online constituted “research” within the meaning of the fair dealing exception of the Copyright Act. The Court then turned to the “fairness” of the activity concluding that the previews were streamed, shorter and of lesser quality and that reasonable safeguards had been put in place to ensure use remained for research purposes only. The Court further held that the effect of the previews was to increase the sale and dissemination of musical works and concluded that the defence of fair dealing applied.

With respect to classroom copies by teachers, it was generally admitted that the activity constituted “research” or “private study” such that the fair dealing exception would apply if the dealing was “fair”. The dispute centered around whether such use was fair where the copies were made at the teacher's initiative. The Court rejected the argument that the purpose of the teacher was different from that of the student when making photocopies. The Court concluded that a teacher shared a symbiotic purpose with the students such that there was no basis to distinguish between copies made at the request of the teacher and copies made at the initiative of the students. Noting that it was unrealistic to expect students to purchase books as an alternative to teachers copying short excerpts, the Court concluded that copying of short excerpts was reasonably necessary to achieve the purposes of the student's “research” or “private study”. On this basis, the Court held that the copying constituted fair dealing.

Finally, in Re:Sound v. Motion Picture Theatre Assoc. of Canada (2012 SCC 38), the Supreme Court of Canada dealt with the question of whether performers could collect royalties in relation to the use of pre-existing sound recordings incorporated in the soundtrack of a motion picture. The Court held that such a tariff was expressly excluded by the language of the Copyright Act.

These five decisions of the Supreme Court of Canada come at an interesting time when extensive amendments to the Copyright Act have just received royal assent and are about to come into force.
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