Canadian Supreme Court Hands Down a Number of Copyright Decisions

The Supreme court of Canada has been quite busy recently. A number of decisions have been handed down that affects royalties and when creators can collect on such royalties and when the law simply doesn’t apply. There’s quite a lot in these decisions that did benefit consumers.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

There’s been two big stories that came out of Canada recently. The first was the revealing of memo’s and briefing notes that point to Minister of Public Safety Vic Teows using the Magnotta case as a selling point for the controversial Internet surveillance legislation. The other big story coming out of Canada was the Supreme Court decisions being made on copyright.

First, we’ll point you to the story that was sent in as a tip from CTV:

The court decided last year to take on all five cases at once, with the view that each of the cases centred on the same principles. On Thursday, it decided to respond to each appeal separately.

In one of the rulings, the court decided that there should be no fees levied against Internet service providers when their consumers download music.


The court ruled that the downloading of an individual file is not a “public” transmission. But it said that when music is streamed online, it is a “public” transmission and therefore fees can be levied.


In another case, the court ruled that Internet providers should also not have to pay fees when music downloaders preview songs.


In another key case, the court upheld the view of education ministers and school boards that photocopying material for students does not infringe the Copyright Act.


In another case, the judges found that movie theatres shouldn’t be charged for the music that’s part of a soundtrack.


And finally, the court ruled that performance royalties do not need to be collected for music used in downloaded video games.

You almost have to take a breath as you digest what all this means.

As someone who has been in the post-secondary school system in Canada, it was always a little annoying having to drop dimes and quarters. I’m not under any illusion that something like that would ever go away, but every time I had to photo copy something knowing that a chunk of that money destined for royalties would probably only go to a select few companies and likely not to the creator I paid the royalty for, it always felt like I was paying into a dishonest system. Knowing that professors had to either pay into the system whenever they made a small excerpt available to everyone or get students to pay an incredible amount of money just for a tiny “course pack” of photo-copied material always made me look at the authors of the original work and say, “I know someone who isn’t going to see any of the money I paid in royalties.” Call me over-cynical over this, but that is honestly how I always felt about it all.

Moving onto the ruling around not having to pay royalties for music previews. I thought this was a completely sane decision. From an artist who sells music perspective, of course I want people to listen to previews for free. I want to prove my music is worth the purchase. What good does it do me to charge the vendor royalties just for the previews? I do want customers after all.

I could go on and on about why I agree with these rulings, but I think you can get the idea of what I think about the rulings.

Michael Geist commented on these rulings as well:

Led by Justice Abella, the court has reaffirmed that fair dealing is a user’s right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies. This post will provide some quick key points in the Access Copyright and song previews decisions.


There is obviously much more, including three more cases to discuss, but the big takeaway is that the Supreme Court has delivered a vision of copyright that emphasizes balance, user rights, and innovation.

In fact, the rulings are so huge, Geist made a second lengthy analysis of what it all means:

I focused on the court’s expansive view of fair dealing in an earlier post, but I think it is worth digging a bit deeper to ask whether Canada has now effectively shifted from fair dealing to fair use. The Copyright Act obviously still speaks of fair dealing, but the expansion by the courts and the legislature may have effectively rendered it very close to fair use.

Under a fair use system (such as that found in the U.S. or Israel), the list of qualifying categories or purposes is illustrative rather than exhaustive. In other words, the statute identifies purposes that may qualify as fair use, but acknowledges that the courts may add new purposes as they see fit. The key to fair use therefore lies not in the purposes – virtually any copying can qualify – but rather in the analysis that follows over whether the particular use is fair. The flexibility of fair use has been lauded as one of its great benefits, opening the door to new innovation that politicians might not envision when drafting the law.

By contrast, fair dealing involves a two-stage analysis. First, the dealing must qualify for one of the enumerated fair dealing purposes. Assuming it meets part one, the second stage involves an analysis of whether the dealing itself is fair. In Canada, this involves a six-factor test that was responsible for much of the analysis in yesterday’s decisions.

While the law still involves the two-stage analysis, the first stage has become so easy to meet that Canada appears to be inching closer to fair use. There are four developments responsible for the shift. First, the number of fair dealing purposes has grown as Bill C-11 added education, parody and satire to the current list of research, private study, news reporting, criticism, and review. This list is quite broad as many uses are likely to fit within one of the purposes.

Comments like this has always reminded me of when I first started covering copyright. At the time, the general rule is that if Canada implemented tough copyright laws like the Canadian DMCA, Canadians would, in fact, be worse off than Americans because the fair dealing provisions are much more strict than Fair Use in the US. While, for years, Canada didn’t have the harsh laws seen in the DMCA, if Canada implemented those same kinds of laws, the fall would be much harder with the thinner fair dealing cushion to break the fall. That, in the past, made the copyright debate in Canada a little easier to understand for me at least.

So, with these rulings, Canadian innovation, I think, has a better chance at flourishing. Unfortunately, that also comes with one really big caveat: with the Canadian copyright bill receiving royal assent, DRM (Digital Rights Management) will ultimately trump a lot of what would otherwise be considered fair dealing in Canada legally speaking. While some might look at that and interpret these rulings as meaningless, I would disagree because the Canadian courts are once again saying effectively, “Look, we have to strike a balance between rights holders and consumers. We shouldn’t simply side with everything some rights holders are saying, the consumers matter too in the equation.”

There’s lots of reading material in all of this and you can dig deeper through my links. All of this is really just a start. You could probably write an entire book on what these rulings means, really. The short gist of it all is that this is a really good day for Canadians overall with respect to these rulings.

Drew Wilson on Twitter: @icecube85 and Google+.

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