Law Times

Law Times • apriL 23, 2012 IT/Telecommunications Law FOCUS ON Recent hearings indicate where court may go in issuing five rulings SCC shows its hand on copyright policy F BY JUDY VAN RHIJN For Law Times with observers and participants. While the decisions will prob- ably arrive later this year, the ju- dicial interventions in the pro- ceedings flagged the issues the court is likely to address. Mark Hayes of Hayes eLaw ive copyright cases in two days kept the Supreme Court busy last December and leſt it overflowing given that the Copyright Board and the Federal Court have affirmed strongly that there' single communication being an infringement of two sepa- rate rights at the same time. "The Supreme Court judges asked, 'Why should Y pay twice for essentially a single communication?'" Hayes re- calls. "The collectives struggled to answer because it's a poli- s nothing wrong with a sity of Ottawa also attended the first day as an observer and watched the second day on the live video stream. "The hearing drew many of Canada' LLP unexpectedly found him- self a witness to the whole two days of argument on Dec. 6 and 7, 2011. He was going to repre- sent the Canadian Association of Broadcasters in the last of the five cases but ended up receiving a call from the Supreme Court advising that Chief Justice Bev- erley McLachlin required all of the counsel for the second day to be in the building with their gowns on and ready to go on Day 1. "On the first day, the public gallery was full and the second courtroom with the video screen was also full, so we counsel watched the proceedings from the Supreme Court conference room." Professor Michael Geist of the Univer- featured a court that was highly engaged in the morning session but content to allow the lawyers to make their case with scant interruption in the aſternoon," he observed of the first day' s top copyright lawyers and of Rogers Communications Inc. v. Society of Composers, Authors, and Music Publishers of Canada and Entertainment Soſtware Asso- ciation v. Society of Composers, Authors, and Music Publishers of Canada. The applicants in both cases are Internet service providers that provide access to web sites from which consumers can download music files and Day 1 saw the court tackle the appeals s proceedings. cy question that hasn't been looked at." The next two cases dealt Mark Hayes unexpectedly found himself a witness to the whole two days of argument in December. video games containing musical works. The ISPs argued these are private communica- tions, but the Copyright Board held that they constitute a communication of the work "to the public" by telecommunication and thus require payment of a copyright tariff. The Federal Court of Appeal agreed. "The earlier cases involving video and approach with compensation for down- loaded games but nothing if someone buys them at a store. Justice Michael Moldaver described it as a "tax on technology" and wondered why Parliament would want to put a damper on the Internet. Hayes felt the court' music downloads were somewhat odd in that bill C-11 will address the issue through a new making-available right, yet no one wanted to raise that fact," says Geist. "Instead, and forth on statutory interpretation issues of the meaning of 'communication' and 'to the public.'" The argument that seemed to generate there was considerable back multiplication of rights within a single work. "The debate has been raging for some time, the most support from the court was the Entertainment Soſtware Association' cern that payment for the music on a video game download would create a two-tier s con- communication like on television or both a communication and a reproduction? Now we have a lot of layering. Where you have audiovisual, musical, video, script, differ- ent elements are owned by different people. There can be double payments where you pay one collective for reproduction and one for communication." Hayes was one of many observers sur- " he says. "Is a video on YouTube a prised at the warm reception that the ap- pellants received, at least in oral arguments, s focus was on the with fair dealing. Society of Composers, Authors, and Mu- sic Publishers of Canada v. Bell Canada concerned short previews of musical works, while Alberta (Minister of Education) v. Access Copyright dealt with the reproduction of works by educators for stu- dents in primary and second- ary schools. "The Copyright samples of music are fair dealing for re- search purposes," says Geist. "Several judges seemed genuinely puzzled at why groups like SOCAN would insist that they were losing revenues by not being compensated for song previews when the previews were helping to generate increased sales." On the education side of the argument, decided that most school uses do not come under fair dealing and that 20-second Board PAGE 9 Hayes thought the Supreme Court judges appeared to realize that they needed to put some more substance to their decision in CCH Canadian Ltd v. Law Society of Upper Canada, in which they classified fair deal- ing as a user right and gave it a larger and more liberal interpretation. "It' ticipate that they will give us some direction on how to interpret it going forward. Even under the revised Copyright Act, where fair dealing will include educational purposes, I expect there will be enough guidance to s fair to an- See Court, page 11 Heydary-FOCUS_LT_Apr23_12.indd 1 www.lawtimesnews.com 12-04-17 9:56 AM

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