Law Times • January 30, 2012
FOCUS
PAGE 11
BY DARYL-LYNN CARLSON For Law Times
copyright cases over the course of two days. "It's certainly highly unusual
I
that the Supreme Court of Cana- da was hearing five cases regard- ing copyright as this will have a significant impact on how we ad- vise our clients in the future," says Glen Bloom, an intellectual prop- erty practitioner at Osler Hoskin & Harcourt LLP in Ottawa. The cases were:
• Entertainment Soſtware Asso- ciation v. Society of Composers, Authors, and Music Publishers of Canada
• Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada
• Province of Alberta as represent- ed by the minister of education v. Canadian Copyright Licens- ing Agency operating as Access Copyright
• Sound v. Motion Picture Theatre Association of Canada
• Society of Composers, Authors, and Music Publishers of Canada v. Bell Canada Bloom notes the top court has
previously only rarely addressed the notion of fair dealing, which was at issue in both Province of Al- berta and Bell. Olsers was involved in both
of those cases and Bloom says the decisions will have an impact on the issue of fair dealing in the context of photocopying excerpts of copyrighted materials for use in a classroom. As a result, the Su- preme Court will consider whose purpose is relevant and whether the use of the copyrighted materi- als falls within one of the fair deal- ing provisions, says Bloom. In an online article Bloom
wrote with some colleagues, he refers to another court case that has significant importance: Cen- tury 21 Canada Ltd. Partnership v. Rogers Communications Inc. The matter involved copyright that
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ntellectual property lawyers were impressed that in De- cember 2011, the Supreme Court of Canada heard five
subsisted in property descrip- tions and photographs used in real property listings displayed on a publicly accessible web site. The plaintiffs, Century 21 and real estate salespeople Charles Bi- lash and Michael James Walton, claimed an injunction and dam- ages for copyright infringement against Rogers and its wholly owned subsidiary Zoocasa. Cen- tury 21 operated a web site fea- turing real property listings of its brokers and agents, including Bilash and Walton. Bilash and Walton claimed
copyright in the listings and pho- tographs of properties they listed for sale on the Century 21 web site. Century 21 also claimed copyright protection
Bilash and Walton's claims for copyright infringement. Zoocasa had developed a web
site that indexed property list- ings and operated much like a search engine. The Zoocasa site included reproductions and rep- lications of the works. Century 21 advised Rogers
pursuant
to an agreement with Bilash and Walton. The court held that the assignment was in fact merely a licence to use the works and dis- missed Century 21's claim for copyright infringement. The court then considered
that it didn't consent to Zoocasa downloading or copying any ma- terials from the Century 21 web site. A total of 128 works consist- ing of 29 property descriptions and 99 photographs were at issue. The real property descriptions were the product of skill and judg- ment and thus met the thresh- old of originality for copyright protection. Zoocasa attempted to rely on
a defence of fair dealing for the purpose of research. The court considered the two-part test for fair dealing along with the factors related to it enumerated by the Su- preme Court of Canada and con- cluded that the actions of Zoocasa
high court anywhere around the world," he says. "It's an extremely unusual situation and I think some would look at it and say, well, the Supreme Court has given me an indication of the impor- tance of copyright issues." Hayes agrees that the cases ad-
dressing fair dealing will be par- ticularly important. Hayes adds that aſter the top court releases its decisions in the five cases, he doubts there will be any further copyright matters addressed at that level for some time. "If anything, I think there won't
The decisions will be significant for the issue of fair dealing, says Glen Bloom.
weren't fair. Mark Hayes of Hayes eLaw
LLP in Toronto agrees that the phenomenon of the top court hearing five cases is profoundly important. "It's being perceived that this is the largest number of cases being taken on by a
be any copyright issues before the Supreme Court of Canada for at least a decade," he says. "The Supreme Court of Canada has heard copyright cases tradition- ally very infrequently and it's good for copyright lawyers to get to ap- pear before Canada's high court if they're involved in the case." Lawyers, then, will be eagerly
awaiting the top court's guidance this summer.
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Lawyers eagerly awaiting SCC copyright rulings Five cases mark unusually big IP docket for Canada'
s top court
