The Copyright Society’s Inaugural Bang: A Panel on Théberge and the Fundamentals of Copyright Balance

On the first week of November, the Copyright Society hosted its inaugural event for the new Canadian chapters established in Ottawa and Toronto. The seminar, titled, “Théberge Two Decades Later: How the Concept of ‘Balance’ Continues to Shape Copyright Law in Canada”, presented a broad but important topic that is the epicentre of Copyright Law in Canada. A number of esteemed panelists came from all corners of the copyright field, including telecommunications, entertainment, collectives, and academia. All sides pitched their position on the famous copyright balance proclaimed by Justice Binnie in Théberge v. Galerie d’Art du Petit Champlain Inc., which described the Copyright Act as “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”. Panelists also commented on how the Copyright Modernization Act has impacted the digital world within practice since its inception nearly a decade ago.

The panel featured Professor Giuseppina D’Agostino as moderator, who is a Professor at Osgoode Hall Law School and founder and director of IP Osgoode, the Intellectual Property Law and Technology Program at the school. From the Society of Composers, Authors, and Music Publishers of Canada (SOCAN), Janet Chong was the second speaker, representing Legal Counsel at Canada’s largest collective managing music rights. Jason J. Kee also spoke from the perspective of Government Affairs and Public Policy Counsel of Google Canada, and from Rogers Communications, Kristina Milbourn gave her legal views as the Director of Copyright & Broadband. Erin Finlay also shared some thoughts on the issues as a Partner with the firm Stohn Hay Cafazzo Dembroski Richmond LLP, specializing in the areas of entertainment law, copyright, privacy, and broadcast regulatory and cultural policy.

The discussion began with Professor D’Agostino summarizing the broad background of the balance principle that has defined the copyright legal landscape since its debut in 2002. Professor D’Agostino noted the concept as nothing new, spanning previous centuries of legal debate between stakeholders of the rights of authorship and reproduction of creative works internationally. After Theberge, the principle continued its influence throughout many more Supreme Court cases that Professor D’Agostino highlighted, including CCH Canadian Ltd. v. Law Society of Upper Canada, SOCAN v. Bell Canada, CBC v. SODRAC, all the way up to as recently as this year with Keatley Surveying Ltd. v. Teranet Inc. in 2019.

Ms. Chong followed with the perspective from SOCAN, a major Canadian music collective that cooperates with hundreds of thousands of music creators and businesses worldwide. She mentions the presence of SOCAN in Canada’s most influential IP cases within the past two decades, including three that were within the pentalogy of Supreme Court copyright cases of 2012. In terms of SOCAN’s position on the copyright balance in practice, Binnie’s principle is not much of an influence on her general work of advocating for fair rates and royalties for creators, and providing the end users with music services. But in terms of policy, the balance principle does shape the discourse in strengthening SOCAN’s lobbying efforts.

Erin Finlay provided her interpretation of the balance principle that she claims has lost its vigour over recent years. She emphasized the public interest as a balance of three factors, rather than it being misinterpreted as polarized between creator and user. There is a public interest in three things, claims Finlay: encouraging creation and encouraging dissemination of creative works, and obtaining a just reward for creative works. In her business, the principles “fair dealing” and “substantial part”, historic in our copyright law, are almost never relied on when the industry is creating entertainment products. She claims, instead, that the majority of her work is about collective bargaining, negotiations on copyright ownership, and rates licensing, all of which seeks the balance between creator, producer, and end user.

Kristina Milbourn then discussed how a company like Rogers Communications thinks about the concept of balance in our copyright law through its many branches. She notes that a massive corporation like Rogers shouldn’t be considered as a monolith when considering balance principles of our copyright law. Rather, as a parent company to a series of businesses, sometimes the interests align, and sometimes they don’t. This would mean that considerations of Theberge’s principles would vary from the perspective of managing Television stations, to Internet services, to Broadcast Distribution Undertakings (BDUs), and depends on their interests at the time, which may or may not conflict.

Google Canada shared its views on the policy side through Jason Kee as counsel of government affairs. From a global perspective, Kee notes that Theberge is not dissimilar to international norms, and the interpretation of a polarized balance is also missing the mark, as Finlay has noted. He suggests that there are human rights issues at stake in terms of freedom and expression and right to remuneration, which may both align despite the discourse on the tensions that exists between them. What Kee emphasizes the most is not that balance should or should not be sought, as this is unanimously agreed upon by the national and international community. Instead, Kee stresses the difficulty of putting a defined quantum, or amount deserving for a certain party, in terms of payments to owners of copyrights who have their works circulating online.

Following each panelist’s presentation, questions were presented by Professor D’Agostino, and debate ensued, which revolved around the subjects previously covered, including how to properly remunerate creators, the notion of access and the balance principle, the international approach to solutions, and optimism for the future. As the discussion continued to spark debate amongst the distinguished panelists, it is certain that the topic will have a very prevalent place in our legal discourse on copyright law in Canada for years and decades ahead. It was certainly a successful inaugural seminar presentation by the Copyright Society, and I wish them the best on their continuing and much-needed presence in our legal community.

Written by Sebastian Romanutti, who is in his third year at Osgoode Hall Law School. This semester Sebastian was enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School and was a Legal Intern at SOCAN.

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