Simpsons Solicitors

Implications for Fair Dealing in the Supreme Court of Canada

July 17th 2012

Like Australia, Canadian copyright law has its origins in English law. The Copyright Modernization Act 2012 will introduce new permissible fair dealing purposes of education, parody and satire into Canadian law. The impact of these new exceptions will be even greater following the Supreme Court of Canada’s broad interpretation of fair dealing in two decisions handed down on 12 July.

Society of Composers, Authors and Music Publishers of Canada, et al. v. Bell Canada, et al. [2012] SCC 36

Some commercial Internet sites allow users to preview excerpts of works before purchase (eg. Apple’s iTunes store). In regard to online music services, a preview is an excerpt (usually 30 seconds or less) of a sound recording that can be streamed so that consumers may decide whether to purchase a download. On October 18, 2007, the Board released a decision, part of which, rejected SOCAN’s proposal to place a tariff on previews. The board reasoned that this constituted fair dealing, as the users were conducting consumer research.

Section 29 of the Canadian Copyright Act contains an exception for fair dealing for the purposes of research or private study, similar to sections 40 and 103C of the Australian Copyright Act allowing fair dealing for the purposes of research or study.

The question before the Court was whether these previews constituted fair dealing for the purposes of research.

The Supreme Court unanimously dismissed the appeal. Analysing whether the previews were provided for the purpose of research, the Court stated that “research” need not be for creative purposes only, and that the term must be given a large and liberal interpretation. The Court determined that the provision of the previews was a fair dealing because the process did not adversely affect the purchase of the music.

You can read the full decision here:

http://scc.lexum.org/en/2012/2012scc36/2012scc36.html

Province of Alberta et al v. Access Copyright [2012] SCC 37 – The K-12 “education” case

The Board certified a tariff with respect to certain photocopies made in schools. The Ontario school boards and affected Ministries of Education appealed the Board’s decision with the contention that teacher-initiated photocopying constituted fair dealing for the purposes of education.

Section 29 of the Canadian Copyright Act contains a fair dealing exception for the purposes of research or private study similar to sections 40 and 103C of the Australian Copyright Act.

The question before the Court was whether the photocopying of excerpts primarily from textbooks for use in classroom instruction constituted fair dealing. It should be noted that this kind of activity is specifically covered under the Part VB statutory licence in the Australian Copyright Act.

The Supreme Court of Canada, in a 5-4 split, allowed the appeal and has remitted the matter to the Board. The majority reasoned that the Board erred in distinguishing between the purposes of instruction and research or private study.

You can read the decision here:

http://scc.lexum.org/en/2012/2012scc37/2012scc37.html

The Supreme Court of Canada’s broad interpretation of fair dealing for research or study will no doubt warrant examination as part of the Australian Law Reform Commission’s current inquiry into copyright exceptions.

On the same day, the Supreme Court of Canada also handed down decisions dealing with the definition of “communication to the public” and the right of copyright owners in sound recordings to receive remuneration for use of their recordings in television broadcasts and film screenings.

Entertainment Software Association, et al v. Society of Composers, Authors and Music Publishers of Canada [2012] SCC 34 http://scc.lexum.org/en/2012/2012scc34/2012scc34.html

Rogers Communications Inc., et al v. Society of Composers, Authors and Music Publishers of Canada [2012] SCC 35 http://scc.lexum.org/en/2012/2012scc35/2012scc35.html

Re: Sound v. Motion Picture Theatre Associations of Canada, et al. [2012] SCC 38

http://scc.lexum.org/en/2012/2012scc38/2012scc38.html

Together, these decisions signal a significant shift in the Canadian copyright system.

To read more about this story go to:

http://www.copyright.org.au/news-and-policy/details/id/2133/

For inquiries relating to publishing and copyright law please contact Adam Simpson.