Meera Nair

Notable Supreme Court Decisions

During the years 2002-2006, the Supreme Court of Canada issued four decisions that each spoke to the importance of keeping the existing limits upon copyright’s reach.

2002: Copyright as Balance
Théberge v. Galerie d’Art du Petit Champlain inc. 2002 SCC 34
This case concerned a transformation of legally purchased artwork; infringement was the charge, the majority opinion disagreed. They said:

Generally, the copyright holder does not by virtue of his or her economic rights retain any control over the subsequent uses made of authorized copies of his work by third party purchasers (para. 65)
The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature (para. 31).

2004: Fair Dealing
CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13
This case concerned, among other things, a library making photocopies of copyrighted materials (at the request of patrons.) In a unanimous decision, Fair Dealing was held to be an integral part of the law. There were quite a few gems in the decision; here are a few of them:

The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right.  … As an integral part of the scheme of copyright law, the s. 29 fair dealing exception is always available (paras. 48-49).
Research must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained. … Research is not limited to non-commercial or private contexts. (para 51).
The availability of a license is not relevant to deciding whether a dealing has been fair (para. 70).

2004: ISP Neutrality
Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45
With an 8-1 decision, the Supreme Court of Canada ruled that ISPs are not liable if copyrighted material passes through their servers:

[The Canadian] Parliament made a policy distinction between those who abuse the Internet to obtain ‘cheap music’ and those who are part of the infrastructure of the Internet itself. It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth (para. 131).

The dissenting opinion was related to a question of territoriality.

2006: The Limited Reach of Copyright
Robertson v. Thomson 2006 SCC 43
A freelance journalistic objected to the inclusion of her work in a CD-ROM of the publishing newspaper, and in two databases. The court grappled with the question: where are the boundaries to copyright in the individual work, and the publisher’s compilation? Both the majority and minority opinions expressed the view that copyright is a limited right, AND, that transformation into a new medium did not recast the ambit of that right. Taken together, it is a strong rebuttal to those who continue to insist that digital works have absolute copyright.

And then came the Day of Five 

In December 2011, the Supreme Court of Canada heard arguments concerning five copyright disputes. The decisions of all five cases were announced on a single day: July 12, 2012. That action alone speaks volumes; taken together our Justices have made plain that copyright is a limited right and the limits are necessary to ensure that creativity and innovation continue to the betterment of all. Along the themes of this blog, three key issues stand out:

2012: Technological Neutrality
Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada,  2012 SCC 34
This case concerned the sale of video games over the Internet, as compared to an in-store or mail-order purchase. The games contain copyrighted musical works; permission for such inclusion is negotiated before the games are sold. SOCAN argued that games purchased over the internet involved a communication and thus SOCAN’s members were entitled to further licensing revenues. The majority of the Court disagreed; the game is the same regardless of the mode of delivery, and ESA had already paid the necessary reproduction royalties. A sentence bound to be cited for years to come lies in the headnotes:

The traditional balance in copyright between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creators of those works should be preserved in the digital environment.

And, with a clear nod to encouraging future developments in new media:

The Internet should be seen as a technological taxi that delivers a durable copy of the same work to the end user [para 5.] … Absent evidence of Parliamentary intent to the contrary, we interpret the Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies (para. 9).

2012: Fair Dealing: “Large and liberal interpretation” continues …
Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36
As noted above, one of the edicts of CCH Canadian was that: “Research must be given a large and liberal interpretation….” Eight years later, the composition of our High Court has changed but this sentiment has not.

In this case, music licensing organizations argued that the use of 30-second previews of digital music (to facilitate sales) should be subject to licensing fees. Siding with the earlier Copyright Board Decision and an Appeals Court decision, the Supreme Court unequivocally said: No. Rather than cast previews as a marketing tool, previews support consumer research. And in response to SOCAN’s desire to limit research to something creative and non-commercial, the justices deliberated at length on what “research” means and further emphasized that the conduct to be examined is that of the end-user:

Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory.  It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework (para. 22).

[SOCAN’S] own proposed definition [of research] shows that it sees research as a user-focused undertaking, since the investigation and creation of new conclusions are clearly done by a user, not a provider. The provider’s purpose in making the works available is therefore not the relevant perspective at the first stage of the fair dealing analysis (para. 28).

Again, the ruling offers much shelter to new media development by commercial entities (those whom we rely on if Canada is to have any success in the world of digital economies.)

2012: Fair Dealing: Legitimate in the Classroom
Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37
For years, the atmosphere about fair dealing in educational institutions has been most inhospitable. Despite the fact that four of the five fair dealing categories (research, private study, criticism and review) are endemic to education, the combination of brash copyright collectives and timid educational institutions suggested the impending death of fair dealing in Canadian education.

At issue in this case was the conduct of teachers who copied short excerpts from copyrighted materials for use in the classroom.  As in the previews case, the focus was on the end-user – namely, Canadian students. The majority of the Justices saw the actions of teachers as merely facilitating the fair dealing rights of students:

Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.  Instruction and research/private study are, in the school context, tautological (para. 23).

The Court also brought much needed clarification to the concept of private study:

With respect, 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 (para 27.)

And something future complainants should consider, the Court made it clear that one cannot peremptorily argue a loss of income – evidence is necessary:

Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years.  …  [T]here was no evidence that this decline was linked to photocopying done by teachers. Moreover, it noted that there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (para. 33).

Nearly two months have passed since the Day of Five. What lies ahead? It is hard to say. Copyright will continue to evolve, with individuals, industries and institutions shaping its next stage of form. With our highest court continuing to emphasize the nuance of copyright – that it is a limited right – Canada could do very well in terms of creativity, innovation and knowledge dissemination.

  1. [...] current law is precise on one disturbing point: copyright is a set of limited rights. So said our Supreme Court (four [...]

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