A Packed House At The Supreme Court of Canada for Five Ground-Breaking Copyright Cases

Tali Eliav and Stephen Hutchison are 2011–2012 articling students at Cassels Brock & Blackwell LLP.

On December 6 and 7, 2011, the Supreme Court of Canada heard five critically important copyright appeals. We were lucky enough to assist with Cassels Brock’s submissions to the Court. We were also fortunate enough to have a seat in the courtroom and observe the arguments first hand.

All nine supreme court judges were on hand to hear the appeal. Chief Justice McLachlin, a veteran of the Court since 1989, sat in the middle. To her left and right sat the other justices: Justices LeBel, Deschamps, Abella, Fish, Rothstein, Cromwell, Moldaver and Karakatsanis. For further details on all of the judges, see the Supreme Court of Canada website.

These appeals arose out of proceedings at the Copyright Board of Canada, a regulatory body that establishes royalties paid for the use of collectively administered copyrighted works. While intimately related, each case presented unique factual and legal issues.

In Rogers Communications Inc v. Society of Composers, Authors and Music Publishers of Canada (“Rogers v. SOCAN”) and Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada (“ESA v. SOCAN”), the Copyright Board found that online music downloads were “communications to the public by telecommunication” within the meaning of s. 3(1)(f) of the Copyright Act, RSC 1985, c C-42. The Federal Court of Appeal dismissed an appeal from Rogers and other internet service providers, who then appealed to the Supreme Court of Canada.

In this case, Apple offered songs for download over its popular iTunes Store. Canadian internet service providers, including Rogers, Bell, and Shaw, all offered similar services. SOCAN is a copyright collective society representing the owners of performance rights in copyrighted musical works. SOCAN applied to the Copyright Board to certify a royalty tariff for online music downloads. SOCAN successfully argued that these downloads were “communications to the public by telecommunication” under the Copyright Act and therefore attracted copyright royalties.

Rogers and ESA made oral submissions in favour of allowing the appeal and eliminating any royalty payments. Barry Sookman opened on behalf of ESA. He argued that a “communication” is fundamentally performance-based and must – unlike video game downloads – be humanly perceivable. Jay Kerr-Wilson followed up for Rogers, arguing that each transaction is individualistic and therefore not “to the public.” Justice Moldaver appeared receptive to these arguments, asking whether the internet was simply an alternative delivery system, a “technological taxi.” Justice Rothstein challenged Rogers’ argument that the transactions were not “to the public.”

Gilles Daigle and Lynne Watt represented SOCAN at the hearings, arguing for the necessity of royalties. Almost the entire bench focused their questions on whether the “communication” right was included in, or in addition to, the performance right. Daigle and Watt insisted that the entire copyright licensing regime rested on treating these two rights as separate, entitling rightsholders to separate compensation for each right.

In Society of Composers, Authors and Music Publishers of Canada v. Bell Canada (“SOCAN v. Bell”), the Copyright Board found that streamed online music previews were “fair dealing” under s. 29 of the Act and therefore not copyright infringement. The Federal Court of Appeal dismissed SOCAN’s appeal. SOCAN appealed to the Supreme Court of Canada. CMRRA-SODRAC Inc., a copyright collective society administering the reproduction right in musical works, and the Canadian Recording Industry Association joined in the appeal.

As part of its iTunes Store, Apple offered free 30-second previews of songs to consumers. However, Apple did not compensate the copyright holders for these previews. SOCAN contended that the previews ought to attract copyright royalties. However, the Copyright Board found that offering previews was “fair dealing for the purpose of research,” as Apple was “facilitating” its customers’ research. Consequently, offering previews was not copyright infringement and attracted no royalties.

Chief Justice McLachlin invited the appellants to make submissions first. “It’s just a preview,” she said, “we’re not sure we’re buying it.” Daigle spoke first on behalf SOCAN. He characterized the use of previews as a part of a shopper’s selection process rather than “research.” Several members of the bench seemed unsatisfied with SOCAN’s characterization of research and requested a precise definition.

Casey Chisick spoke next on behalf of CMRRA-SODRAC Inc. He emphasized the importance of interpreting fair dealing for the purpose of research in a manner that conforms with Canada’s international copyright obligations. Pointing the Court to Chief Justice McLachlin’s own words in Bishop v. Stevens, he stressed the importance of authors and artists being able to control how their works are marketed. Glen A. Bloom addressed the Court on behalf of the Canadian Recording Industry Association, highlighting international instruments and foreign copyright jurisprudence.

Michael Koch made submissions on behalf of Apple. He highlighted the Board’s findings of fact and stressed the identity of interests between authors and Apple in offering free previews. Kerr-Wilson then spoke again, this time on behalf of Bell. By this point the Court asked few questions.

Various interveners also made oral submissions. Ronald Dimock spoke for the Federation of Canadian Law Societies, drawing the Court’s attention to copyright’s implications for access to justice. Wendy Matheson spoke for the Canadian Association of University Teachers, arguing that SOCAN’s definition of “research” would exclude even many forms of academic inquiry. David Fewer addressed the Court on behalf of the Canadian Internet Policy and Public Interest Clinic, opining on the Charter’s interaction with the Copyright Act. Finally, Andrea Rush spoke for the Computer & Communications Industry Association, submitting that users require “breathing space” to facilitate technological advancement.

In Alberta (Minister of Education) v. Canadian Copyright Licensing Agency (cob Access Copyright) (“Alberta v. Access Copyright”), the Copyright Board certified a tariff for teacher-initiated photocopying of short excerpts of textbooks. The Board rejected Alberta’s argument that the photocopying was “fair dealing.” The Federal Court of Appeal dismissed Alberta’s appeal. Alberta appealed to the Supreme Court of Canada.

Wanda Noel went first on behalf of Alberta. She emphasized the importance of providing legal certainty to teachers who wish to copy short excepts of textbooks for educational purposes. She faced a firing line of questions from the bench. Justices Moldaver and Rothstein asked whether Alberta’s educational copying effectively substituted for the original works, threatening publishers with “death by a thousand cuts.” Justice Deschamps challenged Noel’s analogy to CCH Canadian Ltd, asking about the significance of the teacher’s role as the driver of the copying. Justice Cromwell wondered why the Court should focus solely on the students’ purpose, when the students never actually infringed copyright. The barrage left Aidan O’Neill with only five minutes to address the proper standard of review. Marcus Klee then spoke for the intervener Association of Universities and Colleges of Canada, asking the Court to consider the implications of its decision for post-secondary educational institutions.

Neil Finkelstein spoke on behalf of Access Copyright. He stressed the facts of the case, distinguishing Alberta’s copying from the Great Library’s copying in CCH. The judges challenged him on whether and how much the students’ purposes should play a role in the fairness analysis.

Timothy Pinos then addressed the Court on behalf of CMRRA-SODRAC Inc. He emphasized the importance of interpreting “research” in a manner consistent with Canada’s international copyright obligations. Chief Justice McLachlin challenged him on whether international copyright law is too narrow and philosophically inconsistent with CCH. Pinos maintained that CCH is fully consistent with international copyright law when properly applied. Sookman then spoke again on behalf of the Canadian Publishers Council, emphasizing the importance of the incentives that copyright offers to educational publishers.

In Re:Sound v. Motion Picture Theatre Associations of Canada (“Re:Sound”), the Copyright Board refused to certify a tariff for music played in movies and on television. The Federal Court of Appeal dismissed Re:Sound’s appeal. Re:Sound appealed to the Supreme Court of Canada.

Mahmud Jamal spoke for Re:Sound. He argued that the Court should interpret neighbouring rights under the Copyright Act in a manner consistent with Canada’s obligations under the Rome Convention. Various lawyers appeared for the respondents, including Mark Hayes, David Kent, Marek Nitoslawski and Kerr-Wilson. They emphasized the plain meaning of the statute and denied that the Rome Convention required equitable remuneration for music played in movies and on television.

All five cases presented challenging issues for the Court, who reserved judgment in all of the appeals. The results of these cases will undoubtedly shape Canadian copyright law for years to come. For two articling students, the experience was a dream come true.