Meera Nair

in the public interest

In Posts on August 17, 2022 at 7:56 am

Last month, the Supreme Court of Canada provided Canadians with yet another positive outcome in the development of our system of copyright—one that (as Michael Geist said in 2004) does more than simply pay lip service to the balance required therein. SOCAN v. ESA (2022) picks up from where ESA v. SOCAN (2012) left off. On both occasions, our highest court was asked to determine if content flowing through the internet requires additional payment, because of the mode of conveyance. Each time the Court said No.

The issue of concern was the “making available” condition, which was added to the definitional framework of the Copyright Act in 2012. Section 2.4(1.1) states: “For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.”

In a LawBytes episode hosted by Michael Geist, Jeremy de Beer describes the fuller history of this dispute, noting that “the making available case has been more than 25 years in the making.” The legal drama stemmed from the late 20th century phenomenon of music file sharing and the music industry’s effort to assert control over, and seek compensation for, the flow of music. In the first associated case to reach the Supreme Court—SOCAN v. CAIP (2004)—the dispute was whether ISPs should be charged for content that flowed via their services. The Court recognized the importance of leaving neutral entities unfettered in their role as facilitators of access to the Internet and rejected SOCAN’s claims.

This was hardly a death knell for the music industry, quite the opposite. From the infancy of iTunes to a profusion of streaming services today, commercial sales of music and other entertainment products have thrived. In SOCAN’s own words this year:

Despite the challenges of 2021 in the wake of the COVID-19 pandemic, for the first time in its history SOCAN’s total annual collections for licensed music are expected to exceed $416-million… When compared with 2020 collections of $391-million, the company attributed most of the $25 million year-over-year growth to $135 million collected for the use of music on digital platforms – an increase of $32 million over 2020.

As Geist noted, that trend had been positive for some time:

(As to whether profits are fairly distributed between music publishers and their composers and authors, that is an issue of bargaining power, not copyright.)

Returning to the recent decision, the question was whether the “making available” condition, implemented to ensure Canada’s adherence to the WIPO Internet Treaties (1996), was a new right under the Act or merely clarification that the decision to make content available is already protected under our Act. Our highest court made it abundantly clear that Parliament did not create a new right, that in fact, Parliament never intended that this be a new right. Rights are defined, and confined, in Section 3.1. Writing for the Court, Justice Rowe states:

While I accept that the act of ‘making a work available’ is a separate physical activity from the act of a user downloading or streaming a work, it does not follow that it is a separate compensable activity. Had Parliament intended to treat the act of making available as a new separately compensable activity, the way to do so would have been to add ‘making available’ as a fourth copyright interest in the opening paragraph of s. 3(1) (para 59).

Another notable reason given for rejecting the proposition that a new right had been created, was that such an interpretation would violate the tenets of technological neutrality—a goal explicitly stated by Parliament with respect to the 2012 amendments. Again, from the Court:

The principle of technological neutrality is designed to operate precisely in situations like the present case, where a novel technology emerges that has no clear traditional equivalent. In those circumstances, courts must look at what that new technology does to the substance of the work by examining which, if any, of the copyright interests in s. 3(1) are engaged by this new method of distributing a work. If that new technology gives users durable copies of a work, the author’s reproduction right is engaged. If the new technology gives users impermanent access to the work, the author’s performance right is engaged (para 70).

On multiple fronts, this decision is good news and positions Canada well for the future. Michael Geist concisely describes its overall impact: “[It is a] repudiation of SOCAN’s effort to establish a new, additional royalty for the ‘making available’ of music, confirmation of the importance of technological neutrality and copyright balance, an example of the flexibility associated with implementing the WIPO Internet treaties , and the undeniable entrenchment of Canadian copyright jurisprudence that now features deeply layered precedents on users’ rights.”

And yet.

 In his conversation with Geist, de Beer addresses the handling of these issues by the Copyright Board. While he is unequivocal that much of the criticism levied at the Board is undeserved, emphasizing that these matters are highly complex and could be addressed through several plausible approaches, de Beer sheds some light on how the Board copes with such complexity. Briefly, Board members have been so immersed in complicated, technical issues, and “were so deeply familiar with the process of law reform,” they might not consider “alternate interpretations of what the legislation could have meant.” (Unspoken, but implicit is that law reform routinely meant expansion of rights.) Whereas when these same issues arrive at our appeals’ courts, Justices will be “coming at this with fresh eyes [and] rather than focusing on hyper-technical issues and embedded assumptions,” will examine “copyright law and policy more generally, with broader principles … and thus are more able to see another path.”

Said another way (my words now, not de Beer’s) the Federal Court of Appeal and the Supreme Court of Canada are more likely to place public interest (comprising the needs of users, creators, and copyright owners) now and into the future, at the core of any decision.

Readers might remember the Board’s origin story—as has been detailed by Ariel Katz and others—illustrates that the governing body came into being to protect the public interest from the “mischief” and “extortion” wrought by predecessors of today’s collective societies. Moreover, in 2019, after much scrutiny of the Board’s operations (a review by the Senate Standing Committee on Banking, Trade, and Commerce, and the Statutory Review of the Copyright Act by the Standing Committee on Industry, Science and Technology), the powers-that-be explicitly specified “public interest” as relevant to tariff setting processes (Subdivision H/Amendment 292 of C-86).

And yet public interest is still unevenly applied by the Copyright Board. With our profusion of collective societies and entrenched systems of tariffs, this is a troubling state of affairs. We cannot assume that every Board decision will always be reviewed through our appeals’ courts.

But on a more positive note, Canadians should savour a significant theme in this decision—that when examining the intersection of international agreements with domestic law, it is the will of Parliament that matters:

While a treaty can be highly relevant to statutory interpretation, it cannot overwhelm clear legislative intent. The court’s task is to interpret what the legislature (federally and provincially) has enacted and not subordinate this to what the federal executive has agreed to internationally. It is always the domestic statute that governs because “international law cannot be used to support an interpretation that is not permitted by the words of the statute” (para 48, citation omitted).

This may seem intuitively obvious but this outcome was not assured. Since the inception of the Berne Convention (1886), copyright maximalists have used international treaties to expand the scope of copyright. (The exception being the Marrakesh Treaty (2013) for visually impaired persons but we cannot forget it took 30 years to overcome the objections of international publishers and it was ultimately watered down for their approval; see here and here.)

Canada’s 150+ years of copyright history has been one of perpetual acquiescence to foreign demands over domestic needs. Even after shedding our colonial status, in the late 19th century the British Crown cited the Berne Convention (and American wishes) and summarily overrode the then-Canadian Parliament which had chosen an innovative approach to copyright that supported Canadian publishers and writers (see here).

Canada did not fare much better in the 20th century with branch-plant American interests influencing the views of Canadian creators. And even as a 21st century system that prioritizes Canada has taken shape over the last twenty years, a chorus of dissent followed each progressive step with dire warnings that we would violate Berne, TRIPs and WIPO treaties. Thus SOCAN’s argument that an international treaty necessitated a new right was hardly a surprise. What was striking was the forcefulness of the Court’s rebuttal:

Article 8 [of the Treaty] obliges member countries to do two things: (1) protect on˗demand transmissions and (2) give authors the right to control when and how their work is made available for downloading or streaming. It does not, however, tell member countries how to give effect to these obligations. … Member countries could provide for art. 8 protections through “an explicit making available right or provide effective coverage of the right through a combination of pre˗existing rights” (para 88 emphasis mine, citation omitted).

(The Court emphasized that we have done our duty through existing provisions; much like the United States, para 89 or 109.)

As this installment of ESA and SOCAN decisively illustrates, an international treaty, let alone a maximalist interpretation thereof, is no longer sufficient to deny a made-in-Canada system of copyright as befitting our public interest. A moment that has been more than 150 years in the making.

Image by Rebekka D provided through Pixabay
  1. I had to look up ESA and SOCAN as I didn’t know those acronyms!

  2. […] new right, notwithstanding treaty language and obligations undertaken by Canada. Meera Nair, in her blog Fair Duty notes that “Canadians should savour a significant theme in this decision—that when examining […]

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