The Copyright Pentalogy

The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law

Edited by MICHAEL GEIST
Copyright Date: 2013
Pages: 478
https://www.jstor.org/stable/j.ctt5vkcpr
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  • Book Info
    The Copyright Pentalogy
    Book Description:

    In the summer of 2012, the Supreme Court of Canada issued rulings on five copyright cases in a single day. The cases represent a seismic shift in Canadian copyright law, with the Court providing an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users’ rights, while emphasizing the need for a technology neutral approach to copyright law. The Court’s decisions, which were quickly dubbed the “copyright pentalogy,” included no fees for song previews on services such as iTunes, no additional payment for music included in downloaded video games, and that copying materials for instructional purposes may qualify as fair dealing. The Canadian copyright community soon looked beyond the cases and their litigants and began to debate the larger implications of the decisions. Several issues quickly emerged. This book represents an effort by some of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. The diversity of contributors ensures an equally diverse view on these five cases, contributions are grouped into five parts. Part 1 features three chapters on the standard of review in the courts. Part 2 examines the fair dealing implications of the copyright pentalogy, with five chapters on the evolution of fair dealing and its likely interpretation in the years ahead. Part 3 contains two chapters on technological neutrality, which the Court established as a foundational principle of copyright law. The scope of copyright is assessed in Part 4 with two chapters that canvas the exclusive rights under the copyright and the establishment of new “right” associated with user-generated content. Part 5 features two chapters on copyright collective management and its future in the aftermath of the Court’s decisions. This volume represents the first comprehensive scholarly analysis of the five rulings. Edited by Professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, the volume includes contributions from experts across Canada. This indispensable volume identifies the key aspects of the Court's decisions and considers the implications for the future of copyright law in Canada.

    eISBN: 978-0-7766-2084-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. None)
  2. Table of Contents
    (pp. None)
  3. Acknowledgements
    (pp. i-ii)
    Michael Geist
  4. Introduction
    (pp. iii-xii)
    Michael Geist

    Copyright cases typically reach the Supreme Court of Canada (the Court) only once every few years, ensuring that each case is carefully parsed and analyzed. On 12 July 2012, the Court issued rulings on five copyright cases in a single day, an unprecedented tally that shook the very foundations of copyright law in Canada. In fact, with the decisions coming just weeks after the Canadian government passed long-awaited copyright reform legislation, Canadian copyright law experienced a seismic shift that will take years to sort out.

    Not surprisingly, the immediate coverage of the Court’s decisions, which were quickly dubbed the “copyright...

  5. Standard of Review and the Courts
    • 1 Of Reasonableness, Fairness and the Public Interest: Judicial Review of Copyright Board Decisions in Canadaʹs Copyright Pentalogy
      (pp. 1-46)
      GRAHAM REYNOLDS

      On 12 July 2012, five copyright law decisions were handed down by the Supreme Court of Canada (SCC). These decisions have been referred to (among other names) as the pentalogy (or the copyright pentalogy).² One of the more contentious topics addressed in the pentalogy was judicial review of Copyright Board decisions. Two of the five cases dealt with issues relating to judicial review of such decisions.

      In one case—Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada[Rogers]—the SCC addressed the standard of review that ought to apply to questions of law decided by...

    • 2 Courts and Copyright: Some Thoughts on Standard of Review
      (pp. 47-70)
      PAUL DALY

      A series of interesting questions was raised in the pentalogy of copyright cases decided by the Supreme Court of Canada (the Court) in July 2012. Are additional royalties payable when a video game is downloaded rather than bought over the counter?² Is streaming a communication to the public that requires payment to the copyright holder?³ When a consumer listens to a preview of a song on iTunes, is Apple on the hook for an extra royalty?⁴ How much copying can a teacher do to create course materials for students?⁵ And is a movie soundtrack to be treated as a whole...

    • 3 The Context of the Supreme Courtʹs Copyright Cases
      (pp. 71-92)
      MARGARET ANN WILKINSON

      In the summer of 2012, the Supreme Court of Canada created history by simultaneously releasing five copyright judgments:Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada[ESA],²Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada[Rogers],³Society of Composers, Authors and Music Publishers of Canada v Bell Canada[Bell],⁴Alberta (Education) v Canadian Copyright Licensing Agency[Alberta (Education)],⁵ andRe:Sound v Motion Picture Theatre Associations of Canada[Re:Sound].⁶

      This historic event reverberated in a number of domains.

      These five judgments mark the final moments before a long-anticipated major reform in...

  6. Fair Dealing
    • 4 Fair Use 2.0: The Rebirth of Fair Dealing in Canada
      (pp. 93-156)
      ARIEL KATZ

      A century ago, on 16 December 1911, the UKCopyright Act, 1911received royal assent, and for the first time fair dealing was explicitly recognized in the imperial copyright legislation.² Ten years later, the same fair dealing provision would appear in the CanadianCopyright Act, 1921and would remain the basis of the current fair dealing provisions. Tragically, what was supposed to be an exercise in the codification of a dynamic and evolving commonlaw principle, usually referred to as “fair use”, ended up—with a few notable exceptions—in a hundred years of solitude and stagnation.³ Misinterpreting the 1911Act,...

    • 5 Fairness Found: How Canada Quietly Shifted from Fair Dealing to Fair Use
      (pp. 157-186)
      MICHAEL GEIST

      The breadth and scope of copyright limitations and exceptions has emerged as a major policy issue around the world.² Some narrow limitations on copyright holders’ rights, such as quotation, remain uncontroversial, yet more expansive, flexible exceptions have generated fierce debate. Virtually all domestic copyright laws include some limitations and exceptions to the exclusive rights otherwise granted to copyright holders, typically achieved through the adoption of one of two models.

      One approach is a “fair use” model, which is widely viewed as the most flexible limitation and exception on the copyright holders’ rights, given its potential applicability to any circumstance or...

    • 6 The Arithmetic of Fair Dealing at the Supreme Court of Canada
      (pp. 187-212)
      GIUSEPPINA DʹAGOSTINO

      In the 2012 Supreme Court of Canada copyright cases, the Court found an opportunity to redefine the law of fair dealing in Canada. While the Court acknowledged that fair dealing is a question of fact, and thereby properly adjudicated by triers of fact like the Copyright Board of Canada, the Court stepped in to revisit the facts all over again. When compared to its common law counterparts like the UK and the US, Canada stands alone in its willingness to rehear fair dealing cases, which are a matter of first impression.² I argue that while it is salutary to re-emphasize...

    • 7 Fair Dealing Practices in the Post-Secondary Education Sector after the Pentalogy
      (pp. 213-234)
      SAMUEL E. TROSOW

      Now that the Supreme Court of Canada has handed down its historic decisions in the pentalogy¹ and Parliament has enacted Bill C-11,² an extensive set of amendments to theCopyright Act,³ attention should now turn to how copyright policies will be implemented at local institutions. This chapter will focus on how Canada’s colleges and universities might respond to these developments and will build on my previous essay “Bill C-32 and the Educational Sector: Overcoming Impediments to Fair Dealing,”⁴ which analyzed the various educational provisions of Bill C-32⁵ and identified various impediments to the implementation of fair dealing practices.

      Taken together,...

    • 8 Fairness of Use: Different Journeys
      (pp. 235-270)
      MEERA NAIR

      Approximately ten years ago, the Supreme Court of Canada gently opened the door to a more nuanced discussion of copyright. InThéberge v Galéries du Petit Champlain inc. [Théberge] (2002), the majority opinion declared: “The Copyright Act is usually presented 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…. [The proper balance] lies not only in recognizing the creator’s rights but in giving due weight to their limited nature.”² A 5-4 decision, these words might have passed into history as nothing...

  7. Technological Neutrality
    • 9 Technological Neutrality: (Pre)Serving the Purposes of Copyright Law
      (pp. 271-306)
      CARYS J. CRAIG

      In the realm of law, neutrality is widely hailed as a fundamental principle of fairness, justice and equity; it is also, however, widely criticized as a myth that too often obscures the inevitable reality of perspective, interest or agenda. It should come as little surprise, then, that the principle oftechnologicalneutrality, recently employed by the Supreme Court of Canada when applying copyright law to online activities, seems similarly fundamental in the copyright realm—but also largely mythical and potentially obfuscatory. In what is now dubbed the Supreme Court’s “copyright pentalogy”—five copyright judgments released concurrently by the Court in...

    • 10 Technological Neutrality in Canadian Copyright Law
      (pp. 307-334)
      GREGORY R. HAGEN

      Recently, inEntertainment Software Association v Society of Composers, Authors and Music Publishers of Canada[ESA],²Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada[Rogers]³ andSociety of Composers, Authors and Music Publishers of Canada v Bell Canada[Bell],⁴ the Supreme Court of Canada dealt with the issue of how copyright law should treat competingdisseminatorsof copyrighted subject matter.⁵ As the Court recognized, copyright law can impose costs on those who provide new forms of dissemination technology that don’t apply to incumbent disseminators, even where the new forms are more efficient.⁶ In order to...

  8. Copyright Collective Management
    • 11 Copyright Royalty Stacking
      (pp. 335-372)
      JEREMY DE BEER

      Canadian copyright law evolved more in 2012 than in any other year in recent memory. Parliament substantially amended theCopyright Act, and the Supreme Court of Canada decided a quintet of landmark copyright cases.² This chapter addresses the issue of copyright royalty stacking, connecting recent developments with broader legal and economic principles.

      By copyright royalty stacking, I mean the layering of multiple payments for permission—through a certified tariff, collective blanket licence or individual contract—to use copyright-protected subject matter. Stacking is related to, but different than, the fragmentation of copyright through legislative changes, court decisions or licensing transactions. Fragmentation...

    • 12 The Internet Taxi: Collective Management of Copyright and the Making Available Right, after the Pentalogy
      (pp. 373-402)
      DANIEL GERVAIS

      Just after the adoption of Bill C-11,² the Supreme Court of Canada handed down five decisions, which are now referred to as the “pentalogy”, to follow the heretofore famous trilogy.³ The pentalogy, like its three-legged predecessor, marked a significant shift in Canadian copyright policy. The five cases dealt in one form or another with collective management of copyright in that they originated from appeals of decisions made by the Copyright Board of Canada.

      Of the five cases, two do not seem particularly controversial. In the first case,Re:Sound v Motion Picture Theatre Association of Canada,⁴ which involved the 1961 Rome...

  9. The Scope of Copyright
    • 13 Righting a Right: Entertainment Software Association v SOCAN and the Exclusive Rights of Copyright for Works
      (pp. 403-430)
      ELIZABETH F. JUDGE

      InEntertainment Software Association v SOCAN[ESA], in a 5-4 decision, the Supreme Court ruled that the delivery of a copy of a video game containing musical works over the Internet did not implicate the section 3(1)(f) right to communicate to the public by telecommunication under theCopyright Act.¹ The practical result of the decision is that video game publishers and distributors are not required to pay royalties to SOCAN, the collective society that administers the right to public performance and the right to communicate a work by telecommunication for musical works, for the communication of the musical works included...

    • 14 Acknowledging Copyrightʹs Illegitimate Offspring: User-Generated Content and Canadian Copyright Law
      (pp. 431-454)
      TERESA SCASSA

      Bill C-11² provides for a new exception to infringement for user-generated content (UGC), along with new grounds for fair dealing. These provisions, combined with a strong and clear message from the Supreme Court of Canada’s pentalogy of copyright cases regarding users’ rights and the copyright balance, signal a new paradigm for copyright law in Canada—one that tolerates a much greater level of interaction with copyright-protected works. This chapter considers the shape Parliament has given to the UGC exception and examines its place within the scheme of theCopyright Act, particularly in light of recent Supreme Court of Canada jurisprudence....

  10. Contributors
    (pp. 455-456)