All of the cases stem from rulings by the Copyright Board of Canada.
“Whether the board is asked to establish tariffs for the communication of music or the copying of materials in schools, its decisions have become highly contested and invariably subject to judicial review,” said University of Ottawa law professor Michael Geist.
The first case is Entertainment Software Association, et al v Society of Composers, Authors and Music Publishers of Canada. The question under consideration is “whether a download of a video game that includes music is a communication of that music to the public by telecommunication within the meaning of para. 3(1)(f) of the Copyright Act”.
The second is Rogers Communications Inc, et al v Society of Composers, Authors and Music Publishers of Canada. The question there relates to whether online music sales constitute a telecommunication to the public warranting a royalty payment to SOCAN.
The third case, Society of Composers, Authors and Music Publishers of Canada, et al v Bell Canada, et al, promises to clarify Canada’s law on fair dealing. The issue is whether free 30-second music clips made available to consumers at music download stores are a fair use and therefore not subject to royalties.
Fourth is Province of Alberta as represented by the Minister of Education;, et al v Canadian Copyright Licensing Agency Operating as "Access Copyright", which also turns on the issue of fair dealing, but this time in the context of copying excerpts of textbooks for use in schools.
Finally, in Re:Sound v Motion Picture Theatre Associations of Canada, et al, the High Court will consider whether recording artists and record companies should be compensated when their music is played in movies and on television as part of a soundtrack.
Of the Bell Canada case, Ron Dimock of Dimock Stratton, who is representing one of the interveners, said: “The Court has said in the past said there’s a balance you must reach between user rights and copyright owners. Now they’re looking at the balance of those two rights to see whether the fulcrum is in the right spot.”
His partner, Bruce Stratton, added: “This is an opportunity to revisit what [the Court] has said about user rights in the past and to potentially weaken or strengthen them.”
According to Dimock,the cases represent a push by companies for more rights for copyright holders, since the country doesn’t have the equivalent of the US Digital Millennium Copyright Act. However, that legislation “is coming” said Dimock.
The federal government introduced the Copyright Modernization Act, Bill C-11, in October this year. It is the country’s fourth attempt to update its copyright laws.
Of the fourth case, about copying in schools, Casey Chisick of Cassels Brock & Blackwell said: “This is really going to change in a very fundamental way the face of copyright jurisprudence, no matter what the result is.”
Fair dealing exceptions for education are also being debated as part of C-11.
Canada’s Supreme Court has traditionally heard one to two cases per year, so five cases in two days is exceptional.
“The legal issues are really diverse,” said Chisick. “It’s not an exaggeration to say the scope of these hearings will be broader and more significant than probably anything that’s ever been seen before in Canadian copyright law.”
