The Bloomberg BNA Intellectual Property Blog is the home of the "Do You Copy?" podcast and offers links to selected articles by the BNA IP team, which is accessible to both subscribers and non-subscribers as well as commentary and analysis exclusive to this blog.
Thursday, July 26, 2012
by Rebecca E. Hoffman
In my last post I summarized the Supreme Court of Canada's ruling that photocopying of excerpts from textbooks in order to distribute them to students was "fair dealing" and not copyright infringement. But this was just one of five related rulings handed down by that court on July 12.
Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, No. 33800 (Can. July 12, 2012), ruled that online streaming of a music preview by a potential purchaser of a digital music download was also fair dealing. Socan is a performing rights organization representing "millions of Canadian and international music creators and publishers."
The court noted that online music services make musical works available to anyone with access to the website.
"In these circumstances, the transmission of any file containing a musical work, starting with the first, from the online service's website to the customer's computer, at the customer's request, constitutes 'communicat[ing] the work to the public by telecommunication'," the court found. "Communicating to the public" is an exclusive right of creators, and thus the services' streaming of music entitles the copyright owners to royalties.
Downloads, however, were deemed not to be communications to the public by telecommunication, since downloaders receive a personal and permanent copy of the work. In Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, No. 33921 (Can. July 12, 2012); Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, No. 33922 (Can. July 12, 2012); and Re:Sound v. Motion Picture Theatre Association of Canada, No. 34210 (Can. July 12, 2012), the court decided that downloading copyrighted music by itself, or downloading motion pictures or video games that contain copyrighted music, should not be subject to the separate "communication" tariff that the Copyright Board of Canada had attempted to impose.
According to the court, there is no practical difference between music purchased via digital download and that purchased from a store, and neutrality principles dictate there should be no extra charges attached to the electronic method of purchase. Downloading video games and the like does not constitute public performance, the court said, calling the internet a "technological taxi that delivers a durable copy of the same work to the end user."
In a statement released by Socan after the rulings, CEO Eric Baptiste called the internet streaming decision "the right final decision," but noted, not surprisingly, that "[w]e are, however, disappointed that the court chose not to uphold the rights of our members in all of its decisions. We will continue to fight for the legal rights of our members to be compensated fairly for their work."
At American University Intellectual Property Brief, student Tamara Winegust wrote July 23 that the high court's decisions in the "'Copyright Pentology,' sen[t] waves of excitement through the Canadian academic, artistic, and legal communities," and that "[t]he five decisions greatly expand user's rights north of the border and ingrain principles of technology-neutrality into the Canadian Copyright Act."
Notably, Winegust also quotes Canadian law professor Michael Geist as predicting that "'[t]he reverberations from [the] Supreme Court of Canada copyright decisions will be felt for years.'" Indeed, Geist has been carefully picking apart these decisions on his blog, and observed that "these five cases should put to rest the debate over whether a balanced analysis of the Copyright Act that prioritizes both creator and user rights has been entrenched in Canadian copyright law." Geist lauded the new "foundational lens in technological neutrality to examine copyright that is likely to favour users."
Also according to Geist, the fair dealing decision on school photocopying I discussed last week "eviscerates the current Access Copyright business model that is heavily reliant on educational revenues."
"The decision does not create a free-for-all—schools will continue to spend hundreds of millions of dollars every year on books, database licences, and transactional licences—but the need for an additional Access Copyright licence for schools at all levels is now unquestionably in doubt," Geist said.
He observed that the Supreme Court broadened the "research" purpose for copying to include, as he put it, "any personal interest," and that this will expand the application of the "fair dealing" doctrine by permitting almost all school-based copying to pass this first prong of the test and move to the six-factor fairness analysis.
Meanwhile, Canada's House of Commons passed a bill on June 18 that will amend the copyright law in that country for the first time since 1997. These reforms have implications for the making and selling of digital content. The bill is expected to pass quickly in Canada's Senate. More to come on this.
UPDATE: It's come to my attention that the copyright bill has also passed in the Senate and has received "royal assent." So it's go for copyright reform in Canada.
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