If to be cobranded, place other logo here; otherwise delete this text box McCarthy Tétrault Advance™ Building Capabilities for GrowthWhat Every Business Needs to KnowAbout Technology LawSeptember 20, 2012McCarthy Tétrault LLP / mccarthy.ca
Cases before the Supreme Court 2¬ Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (ESA v SOCAN)¬ Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 (Rogers v SOCAN)¬ Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 (SOCAN v Bell)¬ Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (Access Copyright)¬ Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38 (RE:Sound) McCarthy Tétrault LLP / mccarthy.ca
Principles of construction 3¬ The Act reflects a balance in copyright between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creator.¬ The Act should be construed in a technologically neutral manner. ESA v SOCAN, Rogers v SOCAN¬ The Act should be interpreted to extend to technologies that were not or could not have been contemplated at the time of its drafting. It exists to protect the rights of authors and others as technology evolves. Rogers v SOCAN¬ Treaties to which Canada is a party can be used to construe the Act. Rogers v SOCAN, ESA v SOCAN¬ Foreign copyright cases must be scrutinized very carefully before being applied in Canada because of the different wording and policy considerations in the Canadian and foreign legislation. Rogers v SOCAN, Re:Sound McCarthy Tétrault LLP / mccarthy.ca
Interpretation of the communication to 4the public right¬ In ESA v. SOCAN, the Court ruled that a download of a video game was not a “communication” within the meaning of Section 3(1)(f).¬ The right to “communicate” is connected to the right to perform a work and not the right to reproduce permanent copies of the work.¬ A “download” “is merely an additional, more efficient way to deliver copies of the games to customers. The downloaded copy is identical to copies purchased in stores or shipped to customers by mail, and the game publishers already pay copyright owners reproduction royalties for all of these copying activities.”¬ The “Internet is simply a technological taxi that delivers a durable copy of the same work to the end user”.¬ Implications: Using the internet to deliver goods that contain music e.g., video games, podcasts, movies and TV programs, software, AV works, books, will not attract separate communication to the public royalties to SOCAN. McCarthy Tétrault LLP / mccarthy.ca
Interpretation of the communication to 5the public right¬ In Rogers v. SOCAN, the Court ruled that on-demand transmissions of music streams as part of online music services are communications that are “to the public”.¬ The term “telecommunication” should be broadly construed so as to apply to communications that do not depend on the types of technology used to effect the communication.¬ An on-demand communication of a work to members of the public can be a communication that is to the public. The Act applies to push as well as to pull means of transmitting works to the public.¬ The applicability of the communication to the public right is not dependant on the arbitrary choice of business models.¬ Implications: Online streaming services including on-demand online music services, on-demand video rental/streaming services, TV video on demand, UGC sites, interactive gaming sites etc, have to pay communication (performance) royalties as well as reproduction royalties. McCarthy Tétrault LLP / mccarthy.ca
Interpretation of the fair dealing 6defence¬ The Access Copyright case was a judicial review from a decision of the Copyright Board which examined whether copying of short extracts for classroom teaching purposes was a fair dealing. The Board and the Federal Court of Appeal had found it was not. The Supreme Court allowed the appeal and remitted the matter back to the Board to reconsider its decision in accordance with its construction of the fair dealing defence.¬ The Bell v. SOCAN case addressed whether previews of music made available by online music services were a fair dealing for the purposes of research. The Board and the Federal Court of Appeal held they were. The Court affirmed that holding. McCarthy Tétrault LLP / mccarthy.ca
Interpretation of the fair dealing 7 defence¬ Fair dealing is a “user right”.¬ The term “private study” can include students in a classroom setting. 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.” Providing excerpts of texts to students in class is private study.¬ The term “research” must be given a large and liberal interpretation and can include users listening to previews to decide whether to purchase music. “Research” is not limited “to creative purposes”. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest.”¬ “The relevant perspective when considering whether a dealing is for an allowable purpose is that of the user and not the copier. The copier’s purpose is relevant in the fairness analysis.” “copiers cannot camouflage their own distinct purpose by purporting to conflate it with the research or study purposes of the ultimate user”. McCarthy Tétrault LLP / mccarthy.ca
Interpretation of the fair dealing 8 defence¬ Will be easier to establish that the purpose of a dealing is allowable e.g. focus on users, and interpretations of research and private study.¬ Will potentially benefit online uses and online service providers.¬ Will be even broader when C-11 comes into force.¬ Brings Canada closer to U.S. fair use.¬ “User rights”, focus on users rather than on copiers, and the ability to establish fairness by showing a practice or system that is fair, makes fair dealing extremely broad and unpredictable.¬ Decisions will affect rights holders. McCarthy Tétrault LLP / mccarthy.ca
Questions for future cases 9¬ When is a transmission a stream or a download?¬ Will the new making available right in Bill C-11 cover downloads and streams?¬ How predicable/uncertain will it be to develop business models based on fair dealing? McCarthy Tétrault LLP / mccarthy.ca
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