Great Day For Canadian Copyright: Supreme Court Issues Five (Count 'Em) Rulings Supporting Fair Dealing And Fewer Tariffs

from the proud-day dept

Canadian copyright is undergoing huge changes. The copyright reform bill is very close to becoming law, bringing with it some fantastic new fair dealing provisions (though unfortunately along with a significant downside in the form of digital locks rules), and now the Supreme Court has stepped in with a series of major rulings that reinforce users’ rights and begin the process of cleaning up the mess that is Canada’s copyright tariff system. This morning, the court published five separate judgements in cases related to tariffs and royalties, and each one contains significant victories for smarter copyright law.

There is a lot to dig into in this series of rulings, and some complex legal questions involved in some portions, but each one also makes clear statements. In the first case, between Alberta schools and the copyright collective Access Copyright, the court found that photocopies for classroom use can be covered by the “research” provisions of fair dealing. In the second case, between videogame publishers and a music collection society, the court found that selling videogames does not constitute a new public performance of the music they contain, and thus does not require a public performance royalty (yes—the Copyright Board and Federal Court of Appeals had both previously ruled that transmitting videogames with music in them counts as “communication to the public”). Similarly, in the third case, the court found that films which contain music are also not public performances requiring an additional royalty (on that one, the lower courts had gotten it right and also refused to certify the tariff). In the fourth case, the court affirmed that while streaming music to users is a public performance, offering music for download is not—so services like iTunes also don’t have to pay additional performance royalties. Finally, in the ruling that may get the most attention, the court found that 30 second previews of songs provided by online music services qualify as fair dealing for the purposes of research—a battle that has been going on for a long time in Canada and is now, finally, put to rest.

The rulings also contain a lot of very important language that will have a lasting impact beyond these specific scenarios. The Supreme Court reaffirms the fact that fair dealing must have a “large and liberal” interpretation, and set down some clear restrictions on the power of the Copyright Board. Howard Knopf does an excellent job of summing up some of the important points and broader themes of these five landmark rulings:

  • Collectives cannot assume that they will be entitled to an additional “layer” of remunerated rights every time there is a new method of delivery. Technological neutrality matters.
  • The Court said what it meant and meant what is said in CCH v. LSUC in 2004 and will move forward from there – not be pushed backwards.
  • Users have rights that must be given a “large and liberal interpretation”. Copyright doesn’t exist solely for collectives.
  • Educators are in a “symbiotic” relationship with students and the Copyright Act serves the goal of education, which includes access to essential material
  • Copyright law is both about “protection” and “access”
  • Copyright law is about “dissemination”
  • “Research” is not restricted to “creative purposes”. Consumer research counts too. Research can even be for “personal interest”. There is no absolute requirement for “transformative” use in Canada
  • The user’s purpose is the one that counts in fair dealing
  • Practices that increase the sale of work cannot be said to have a negative impact on the work
  • The concept “public” must be considered in light of new technology, technological neutrality and the purpose of the legislation. The fact that communication may be interactive on an individual basis does not mean that it cannot be considered to be to the “public”
  • When the statute uses a word such as “excludes”, it means it. The word is not superfluous.
  • Parliament did not intend to “recognize a superior expertise of the [Copyright] Board relative to the courts with respect to legal questions arising under the Copyright Act”. On copyright questions of “first instance”, the Board will get no more deference that any court would get. In other words, the Board must be “correct”. It will not be sufficient that it merely be “reasonable”

One of the groups that is likely to be hit the hardest by these rulings is Access Copyright. We’ve covered the fact that Canada’s university association struck a terrible deal with Access Copyright for the clearance of educational materials, and several major Canadian unversities are refusing to sign on. This Supreme Court case was not directly dealing with that situation (it covers only primary and secondary schools), but the ruling contains a complete tear-down of Access Copyright’s entire business model which applies every bit as much to universities and colleges. Michael Geist walks through the point-by-point dismantling of all Access Copyright’s standard arguments against fair dealing, leaving them very few legs to stand on moving forward. For those universities that plan to clear their own copyrights, this is a very big win—for those that didn’t have the resources to keep fighting after the AUCC abandoned them, it just highlights how bad of a deal they got.

Copyright law in Canada has its problems—first and foremost the extremely bad digital locks rules that will come into effect with Bill C-11. But, increasingly, and most notably at the Supreme Court level, we’ve also been making significant strides in the right direction, using legal language that displays a clear understanding of both modern realities and the need for balance in copyright law. There are still important battles to be fought, but today the Supreme Court gave us a huge arsenal of new weapons.

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Comments on “Great Day For Canadian Copyright: Supreme Court Issues Five (Count 'Em) Rulings Supporting Fair Dealing And Fewer Tariffs”

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Anonymous Coward says:

Re: Re: Re:

It’s not that simple.

The TPPA binds signatories to rulings made by panels that exist outside any country’s courts and which are not bound by any country’s legislative or common law. The financial implications could force the Canadian government to step in and legislate around court rulings.

TtfnJohn (profile) says:

Re: Re: Re: Re:

It might, which would mean another trip to the Supreme Court and the merry-go-round will start again.

The text of the rulings indicates that the court isn’t backing down on this. It would make it very, very interesting to see a clash between the Constitution and the Court on one side and TPP on the other over little things like extraterritoriality on the other side.

The government could try to get around it by amending C-11 so that it falls in line with the TPP if Canada signs on.

Unlike ACTA, TPP isn’t being discussed totally in the dark though it’s very opaque. For now. Nor is it as “sure” a thing as ACTA was supposed to be.

Things get a little more interesting now that Iceland has told VISA to honour donation payments to Wikileaks restoring at least some funding to that site. If that holds TPP may become a leaky ship indeed given reports that some countries aren’t happy with the way things are going there. It could become quite interesting. And, entertaining. ๐Ÿ™‚

Andrei Mincov (user link) says:

Not a great day at all...

It’s anything but a great day because it provides yet another example of interests of the collective as a whole trumping the interests of the individuals.

It never ends well.

I wrote about it in

Copyright is NOT about dissemination or the money. Copyright is about control. Copyright is all about “because it’s MINE”. Copyright is all about “Don’t like it – don’t use it”.

Andrei Mincov (user link) says:

Re: Re: Not a great day at all...

If this was the case, then we would not need any copyright laws AT ALL.

Which, in fact, just proves my point.

Copyright laws is what allows authors to release their works to the public (directly or indirectly) while being able to claim: “It’s MINE” to the extent that they don’t feel comfortable giving up the control.

Anonymous Coward says:

Re: Re: Re: Not a great day at all...

How is that?
Exclusion laws are to exclude other from something, the only threat to releasing anything to the public is the granted monopolies that are granted to authors.

Without copycrap people would still release their works to the public and would still find profits from their work, they just wouldn’t be able to stop others from doing the same thing, which is not a bad thing at all.

Open source just proved that all that copyright BS is just that, BS.

Anonymous Coward says:

Re: Re: Re: Not a great day at all...

But if all copyright is about is “it’s mine”(your claim), then copyright is utterly useless for that. Once you release it people *will* make copies. If they don’t you’re an utter failure as an artist because no one likes your stuff.

Only by keeping the work to yourself can you say “it’s mine!”

Anonymous Coward says:

Re: Re: Re: Not a great day at all...

“If this was the case, then we would not need any copyright laws AT ALL. “

You falsely assume that just because we have IP laws, we need them. That’s terrible logic. We don’t need them and they’re not even publicly beneficial which is why I say we abolish them.

TtfnJohn (profile) says:

Re: Re: Re: Not a great day at all...

The simple reality is that long before copyright existed authors wrote, composers composed, sculpture was made — the entire concept of culture as we know it came to be.

An outgrowth of the Agricultural Revolution which spawned the need for writing and so on. Which isn’t to say that hunter-gatherer societies don’t have culture — they do. But what we’ve come to know as civilized culture required agriculture to appear.

Culture as we know it didn’t only arise without copyright it flourished.

Invention didn’t appear after patents came about, it too flourished. Invention, as much as anything, is the response to a need or to simply “scratch an itch” where the itch is “I can do it better than that”. Or by sheer accident. Take Kitty Litter for that one. (Yeah, I know, Kitty Litter was patented almost as soon as the guy selling it figured out that all kinds of people wanted his fullers earth concoction.)

I’m still trying to figure out, with some horror, what would have happened if the guy who came up with the wheel could have patented it and then enforced that patent on the rest of us.

Each of these concepts — copyright and patents — confer a temporary right of monopoly in return to contributing to the wider public good. There is no natural right to either and no natural right to monopoly which allows one to say “it’s MINE” until the universe dies which seems your viewpoint.

And neither has the slightest connection with Marxist/Leninist/Maoist Communism or the disaster that they are/were. Oh, let me rephrase something. More accurately it’s Stalinist/Maoist Communism which betrayed Marxist theory concerning just who would control what, turned it on its head and became and excuse for some of the most murderous tyrannies we’ve known. Sadly, some free market capitalist societies that have had zero regulation have done the same. No one is pure here.

My point here is that long before structures were adopted that, for all practical purposes, became exclusionary culture and invention flourished.

Equally sadly, in many, if not most cases, these exclusionary practices have removed whatever control an author, innovator or inventor may have had in theory are removed in practice as in order to be published or capitalize an invention, the exclusionary rights had to be assigned to someone else removing the control you so value. Or claim to. Unless you’re suffering from an ideological blindness/delusion. Not that uncommon. I’ve been known to suffer from that from time to time myself.

Exclusionary rights or practices are as offensive to freedom and culture as tyrannies pretending to be the protectors of “the working class” were and are.

Fed Up With Bad Copyright Laws says:

Re: Re: Not a great day at all...

If you feel that copyright is all about “because it’s MINE” then it’s very easy to keep control of your works. Don’t release them to the public.

There are laws which state nobody can take that which is legally mine. Thanks to such laws, I can leave my expensive laptop in a public area for several days and expect it to still be there when I go back for it.

Ok, so who in their right mind actually believes leaving my property in a public place for several days and expecting it to still be there several days later is completely unrealistic? The simple fact is that once you are no longer in possession of that which belongs to you, it is no longer yours to control no matter what the law says. It’s just a reality you have to accept whether you like it or not. Is it fair? Of course not. But who in their right mind actually believes we live in a universe that’s fair?

Our world and everything in it doesn’t care what we think or want. It’s an imperfect universe that we have very little control over and the sooner people accept that, the better off they’ll be. Instead of trying to bend reality to your will, accept reality and adapt to it instead. If this means figuring out new business models, then that is what you do.

Look at life on this planet for instance. No matter how harsh and unwelcoming the world has been over the eons, life adapted and thrived as a result. Those that did not / would not inevitably died out. The nature of business follows those exact same rules. Wail and moan all you want about life being unfair, nature simply doesn’t care.

If a tornado destroys your house, you don’t sit there in denial, screaming at the universe in the hopes it will some how play fair and make it up to you. You adapt by building one that’s hopefully more resilient. Same goes for business models. The old ones no longer work? Get off your lazy self righteous ass and create a new one that does! Sure it sucks, but nobody is going to do it for you and trying to legislate the world to remain static is like passing laws that make it illegal for tornadoes to pass through your town. Dumb and destined to fail.

TtfnJohn (profile) says:

Re: Not a great day at all...

Evidently you have not familiarized yourself with the history of the Statue of Anne which is the basis of our copyright regime.

I won’t bother repeating the history prior to the Statue of Anne but at least you could look up the title:
“A Bill for the Encouragement of Learning and for Securing the Property of Copies of Books to the rightful Owners thereof”

From the beginning there was a balanced emphasis on the public good and on the rights of those who owned the manuscripts (books) in question. The owner of those rights need not be creators. The public good is learning which is where the Supreme Court largely ruled.

Authors, songwriters, composers and so on unless extremely well known rarely retain their copyright. In order to get published, recorded, performed and so on they need to assign their copyrights. Not something a lot of creators find to their taste but none the less that’s the reality. For reference see George Harrison – “Only A Northern Song”.

Your world, wherein creators hold copyright and control doesn’t exist. As you say you your site creators shouldn’t be forced to surrender those rights under duress yet publishers do just that and have since 1710 with the blessing of the courts. Fair dealing, that part of the regime intended to encourage learning, has been in place since 1710 as well. Early rulings in England, repeatedly rejected the notion that copyright was primarily concerned with being exclusionary it had the dual concern for learning.

While your ideal world, if your site is any indication, is that copyright exists only to be exclusionary doesn’t and never has existed.

While publishing rarely leaves creators in deep debt as the recording industry arranges for its newly signed creators it can leave the author in some debt. That is the book needs to sell enough copies to cover whatever advance the author may get while the author relies on the publisher to promote the book. It’s very rare than an unknown author gets much if any of an advance on sales unlike the situation that exists in the recording industry where it’s common.

Your dismissal of fair dealing as some form of socialism is, then, so much utter and complete hogwash.

Copyright, as we know it, from the Statue of Anne is a balance between public and private good no matter what you think or want it to be.

If you were to get your desire for a totally exclusionary form of copyright then what support there is for the concept would utterly vanish. Nor, as you assert, is all creation the result of some god-given genius or talent. That one has been taken apart by courts over and over again as extremists like yourself have attempted to establish perpetual copyright.

The Supreme Court has ruled on the law as it exists and will exist when C-11 becomes law and has since 1710. Strangely I agree completely with your assertion that creators should be recognized for their creations but I totally reject your way of doing that.

And no…copyright is not “because it’s MINE” in its entirety nor is it all about “don’t like it – don’t use it.”. As a lawyer you should know better. Unless you’ve been breathing in too much diesel exhaust from what’s left of the marshalling yards right by your building or the ships idling in Vancouver harbour.

Andrei Mincov (user link) says:

Re: Re: Not a great day at all...

Statute of Anne was adopted long before people had a hope of having their individual rights recognized as those superior to those of the “society”.

I discuss this in my comments of Bill Patry’s book here:

Just because the first copyright law was borne within an unjust system does not mean that it has to stay that way forever.

Niall (profile) says:

Re: Re: Re: Not a great day at all...

I think you are overly obsessing over and focusing on Soviet structures, which no-one here is proposing – and I certainly don’t believe Patry is. Most people support fair recompense for artists, while being all to aware that copyright is not a ‘right’ to an unlimited gravy train unto the seventh generation, as it is becoming today. That is more akin to socialism than capitalism, I would argue! No-one else in society gets paid for ‘not working’ – only for the work they do (except the 1% – guess that’s the capitalist angle).

Many people do not feel that the Statute of Anne is an ‘unjust’ system – indeed, would it have become the basis of US copyright in the Constitution if it were inherently ‘unjust’? It doesn’t mean that it cannot be improved upon, but at its core, it is the basis of existing law.

Like it or not, it is stated in the Constitution that copyright is for “the Progress of Science”, i.e. learning and the public good. It is irrelevant (unless you have an obsession with everything having a dollar value) whether it is monetised or even monetisable. Copyright protects this comment of mine. By your argument, because I have no hope or expectation of making money from it, it is not only ‘worthless’ as part of ‘culture’ but shouldn’t have copyright protection.

Times change, technology changes, and attitudes change. The law needs to change with time as well. You cannot legislate against behaviour that the public at large do not agree with – just ask the framers of the Fugitive Slave Act how successful that was, or Prohibition!

TtfnJohn (profile) says:

Re: Re: Re: Not a great day at all...

I’m far from saying the Statue of Anne is/was perfect. What I’m saying is that it attempted to strike a balance between the public good — Education — and the private good — a grant (not a natural right) of a temporary monopoly for rights holders.

Keep in mind that I said temporary, not permanent, not eternal and certainly not the joke copyright has become wherein your creator (authors), in the vast majority of instances, has to assign their copyright simply to get published to the publishing company thereby completely giving up the right you want them to have of control over their works. They end up with none.

For the most part it worked as long as publishing and production remained what it more or less was in 1710. Then came things like sneaker net, pre-Internet BBS systems and then the Web, high speed connections everywhere and the entire set of assumptions around production, control and exclusion or inclusion began to fall apart until we get to today where it has fallen apart.

Oh yeah, and programs the enable just about anyone to typeset and produce their own ebooks too. Skills may be lacking in many cases but the means to produce and reproduce are there in abundance.

Screaming “it’s MINE!” like a 2 year old doesn’t change that.

Anonymous Coward says:

Re: Not a great day at all...

You haven’t read the constitution have you. You haven’t read anything that the founding fathers wrote.

IP laws are about promoting the progress. They’re about serving a public benefit. That you’re turning them into something else, that you’re making them about your personal profit margins, is more reason they should be abolished.

TtfnJohn (profile) says:

Re: Re: Not a great day at all...

In this context the US Constitution is or may be a reference point but as we’re talking about the Supreme Court of Canada and the Canadian Constitution, both written and unwritten parts thereof, it doesn’t apply.

That’s why I fall back on the Statue of Anne and it’s intended purpose of a balance between public and private good which, indirectly, leads us to the same place you’re at.

John says:

“Research” is not restricted to “creative purposes”. Consumer research counts too. Research can even be for “personal interest”. There is no absolute requirement for “transformative” use in Canada

This one fascinates me. That basically sounds pretty identical to how I used napster in the very early days before the music industry went all pyscho on their fans. I used it as a consumer research tool during the week to decide what CDs to buy in town at the weekend and which bands were worth booking tickets for. So does file sharing count as “consumer research” because it enables people to decide best how to spend their music interest budget at the weekend and after work?

TtfnJohn (profile) says:

Re: Re:

TPP provisions that affect the copyright act would require the government of the day to introduce a bill in the Commons amending the Act. It doesn’t happen automatically.

These rulings and the language used in them make it clear the Court is having the final word here unless that happens. TPP can’t change that. And their view that Fair Dealing ought to be interpreted broadly and liberally would be hard to reverse later on unless the minority had some equally strong wording or that the legal ground changes substantially.

The Supreme Court of Canada rarely reverses itself.

Joe says:

Response from Access Copyright

hmmm, for the most part it looks like spin to minimize the impact.

* “Limited to Small Proportion of Copying in Schools”

* “the Supreme Court was only looking at about seven percent of the copying done in schools,”

* “leaving the vast majority of copying by K-12 schools unaffected by the decision”

Anonymous Coward says:

O Canada

O Canada!
Our home and native land!
True patriot love in all thy sons command.
With glowing hearts we see thee rise,
The True North strong and free!
From far and wide,
O Canada, we stand on guard for thee.
God keep our land glorious and free!
O Canada, we stand on guard for thee.
O Canada, we stand on guard for thee.

Anonymous Coward says:

Re: O Canada

Or to partially appease the Francophones… =P

O Canada!
Our home and native land
True patriot love in all thy sons command.
Car ton bras sait porter l’?p?e,
Il sait porter la croix!
Ton histoire est une ?pop?e
Des plus brillants exploits.
God keep our land glorious and free!
O Canada, we stand on guard for thee.
O Canada, we stand on guard for thee.

Paul Renault (profile) says:

Re: Re: O Canada

Close, but that’s a hockey game version:

? Canada!
Terre de nos a?eux,
Ton front est ceint de fleurons glorieux,
The rest is fine.

However, this is the one you should be singing, while you’re watching the Maple Laughs “losing that damn hockey game” (to quote Jody Mitchell):

ᐆ ᑲᓇᑕ!
ᓇᖕᒥᓂ ᓄᓇᕗᑦ!
ᐱᖁᔭᑏ ᓇᓚᑦᑎᐊᖅᐸᕗᑦ.
ᓇᖏᖅᐳᒍ, ᐆ ᑲᓇᑕ,
ᐆ ᑲᓇᑕ! ᓄᓇᑦᓯᐊ!
ᓇᖏᖅᐳᒍ ᒥᐊᑎᓂᕆᑉᓗᑎ,
ᐆ ᑲᓇᑕ, ᓴᓚᒋᔭᐅᖁᓇ!

All together now!

Tunnen (profile) says:

Re: Re:

Haha, could you imagine the uproar that would cause if a Canadian Trade Agreement was made in a secret backroom deal to push these views on copyright onto other countries like the US.

Better yet, also hide it in a rider in lesser known bill, and try to fast track it through congress. If it was put through as it’s own bill though, we’d of course need to name it something that is the opposite of what it actually does. I think the “Copyright Maximalist Act” has a nice ring to it.

Don’t forget, this bill will help to “Protect the Children” by preventing “Cyber-bullying” from “Chinese espionage”, “Terrorism”, and “Communist” ideals!

Anonymous Coward says:

What you don’t see to grasp is that all of these levies and surcharges are in place IN RETURN for basically turning a blind eye to file trading. It’s the “pay me now, or pay me later” problem.

The courts rules that these levies are not legal, and the return will be a push to get more stringent copyright laws in place, so that money can be made back somewhere else.

It’s not hard to understand, unless you purposely ignore reality.

TtfnJohn (profile) says:

Re: Re: Re:

Precious little, actually. The problem with the entire levy system is once you collect the money how do you divide it up?

Based on sales? Based on who got downloaded the most in some remotely piratical way? Based on the relative sizes of the English and French markets including, say, the US and UK for English and France and other french speaking markets for what Quebec and Acadia produce?

Fairness is all very well and good and a laudable goal but just how do you come up with a formula that has a chance of working?

Anonymous Coward says:

Re: Re:

I call that line of reasoning BS, those levies are not there because of pay me now or pay me later they are there simply because some people can get away with it.

Those same people will still kick and scream about piracy and ask for more draconian laws and they will get it.

So in fact those levies are for the most part a bonus on top of all the other crap those people claim they should get.

Screw the levies and screw copyrights.

Anonymous Coward says:

AUCC acted in bad faith...

It is obvious that the AUCC never negotiated in the best interests of the students but of private interests… The universities should take action against the AUCC that goes contrary to copyright law… in other words AUCC is incompetent as negotiators and fraudulently represented themselves as looking out for the interests of students and educators.

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