The Supreme Court of Canada issued rulings on five separate cases dealing with Copyright Law. This fresh jurisprudence should serve to give a refined understanding of one of the more contentious provisions on the Copyright Act, namely s.29 (fair dealing).
The Alberta v. Access Copyright case drew large public interest as it had implications to drastically change the current licensing business model between copyright collectives and educational institutions. In this case a teacher photocopied copyrighted material for a student for “research or private study”. The Copyright Board of Canada ruled that although the purpose was for private study, the actions did not amount to fair dealing with respect to s.29 of the Copyright Act for failing to be “fair” according to the legal test which analyzes six separate factors. The Majority of the Supreme Court came to the alternative outcome ruling copying of copyrighted work for the classroom constitutes fair dealing and no royalty should attach. Consequently, Access Copyright (the copyright collective in this case) stands to lose millions of dollars from royalties it would have collected from schools across the nation.
The SOCAN v. Bell, ESAC v. SOCAN, and Rogers v. SOCAN cases provided discussion and clarification with regards to specific digital services provided and whether royalties should attach. In SOCAN v. Bell, the court ruled that streaming previews of songs constitute fair dealing as it is reasonably necessary to help consumer research what to purchase, and therefore royalties should not attach. Moreover in ESAC v. SOCAN, the court ruled that downloading a game which contains copyrighted musical works does not constitute “communication” to the public and therefore royalties should not attach. In the Rogers v. SOCAN case, the court differentiated the acts of streaming and downloading music. Only the former is subject to royalties collected by copyright collectives.
Finally a reference case of Re: Sound dealt with the issue of whether a “soundtrack” being part of a motion picture constitutes a “sound recording”, and therefore becomes subject to pre-defined tariffs. The Supreme Court ruled a “soundtrack” is a “sound recording” in all situations except when it accompanies a motion picture, as expressly set out in s.2 of the Copyright Act.
Throughout these cases the Supreme Court has added more clarification to the required tests for fair dealing which should help both copyright holders and users understand the legislation with greater accuracy.
If you have any further inquiries please contact Scott Miller or Randy Marusyk.
This article originally appeared on www.mbm.com on July 12, 2012.
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