Mark Kohras is a JD candidate at Osgoode Hall Law School.
Digital media has been prominent in Canadian minds lately. From the recent copyright consultations to the outcry over the usage based billing decision, digital content and the way we receive it is becoming increasingly important to Canadians. As our society navigates the digital age, issues around intellectual property become more relevant as we begin to understand its implications, so it’s no small wonder that the Supreme Court of Canada has started to take an interest as well.
Recently, the Supreme Court of Canada granted leave to appeal in two major copyright cases. The first case, Entertainment Software Association (ESAC) et al. v. Society of Composers and Authors and Music Publishers of Canada (SOCAN) is an interesting case regarding the use of music in video games. SOCAN, the copyright collective responsible for collecting and applying for royalties, claims that video games which incorporate copyrighted music are engaging in telecommunication to the public of that music when transmitted over the internet and therefore are entitled to a royalty for that telecommunication. Since online sales of video games are becoming increasingly more popular with major video game producers, this could represent a substantial amount of money.
Another case, Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada (SOCAN), is again an issue stemming from a SOCAN applcation for royalties. The question, similar to the above case, is whether online music sales are a telecommunication to the public. Traditionally, online music sales are private transactions between the purchaser and music seller. However, the first instance Federal Court ruling suggested that, as long as the seller intended to sell “to the public” and the song is received by at least one member of the public, a telecommunication to the public occurred and the royalty applies. The ISPs are disputing this test.
The two cases will be heard alongside a previous case granted leave to appeal, Society of Composers, Authors and Music Publishers of Canada (SOCAN) v. Bell Canada et al., a landmark decision regarding fair use of music. The case involves a ruling of the Copyright Board of Canada, stating that the free 30-second previews provided to consumers on most music download stores are considered “fair use” for the purposes of consumers’ research. Therefore, no tariff for royalties will be granted to SOCAN for their use. This case will allow the Supreme Court of Canada to clarify fair dealing once again, in the aftermath of CCH Canada Ltd. v. Law Society of Upper Canada.
The final case to be heard is Alliance of Canada Cinema, Television & Radio Artists (ACTRA) et al. v. Bell Aliant Regional Communications et al. ACTRA is requesting that Internet Service Providers be classified as “broadcasters” under the broadcasting act, given the amount of content transmitted over the internet nowadays. This would require the ISP’s to contribute to a fund to help with the development of Canadian content.
As can be seen from the cases demonstrated above, technology is changing so fast that the law is understandably struggling to catch up. New issues are being brought before the courts that policy makers in Ottawa might not have ever anticipated when these laws were drafted. As intellectual property issues are becoming increasingly important to the average Canadian, it becomes more important than ever that we clarify our copyright laws as they apply to today’s technological realities. Since copyright reform is starting to look like a far off dream, with the third attempt at reform dissolving along with the current government, we are left to look to the Supreme Court of Canada for clarification of the current laws in the context of today’s realities, and it looks like it has taken up the challenge.