Victory for fair dealing in Canada
Managing IP is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Victory for fair dealing in Canada

Case of the Year 2012: Canadian copyright cases

ottawa.jpg

The result

Online music preview clips are covered by fair dealing

The impact

More robust fair dealing provisions, particularly online

Society of Composers, Authors and Music Publishers of Canada (SOCAN) v Bell Canada was one of five copyright cases heard by Canada's Supreme Court in 2012. The decisions helped define Canadian copyright law for the internet, creating precedents which largely weighed in favour of the end user and the public interest. All of the cases originated from rulings by the Copyright Board of Canada and were heard by the country's Supreme Court.

In the Bell Canada case, the court provided a much-needed answer to the question of whether copyright owners should receive royalties for preview clips of music. The court found that 30-90 second previews were covered by fair dealing for purposes of research, agreeing with the Board's conclusion that customers use the previews to conduct research on which music to buy.

Rogers Communications v SOCAN concerned similar issues. The court considered whether streaming online music constitutes a telecommunication to the public under the Copyright Act, which would entitle SOCAN to a royalty payment. The justices confirmed the principle that streaming music online is a communication to the public. However, they concluded that offering music for download should not be classified as a communication, so services like iTunes are not obliged to pay additional performance royalties.

In Entertainment Software Association and Entertainment Software Association of Canada v SOCAN, the court considered questions relating to music royalties in downloaded video games. The central issue was "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 paragraph 3(1)(f) of the Copyright Act".

The court ruled that delivering a video game featuring copyrighted music via the internet does not entitle the copyright holder to additional royalties beyond those received for the reproduction of the music. The justices said that a separate communication tariff would violate the principle of technological neutrality, creating a special set of rules for the internet compared to other methods of distribution.

In Province of Alberta as represented by the Minister of Education v Canadian Copyright Licensing Agency Operating as Access Copyright, the court ruled that teachers making photocopies for classroom use are covered by the research provisions of fair dealing. The justices rejected Access Copyright's argument that the teacher had a different purpose to the student when making photocopies.

In Re:Sound v Motion Picture Association of Canada, the court considered whether copyright holders should receive additional royalties when their music is played as part of a soundtrack on television or in the movies. It ruled that televising music in this way did not constitute a "public performance" that would entitle artists and record studios to additional payments.

Case details

Copyright office: CIPO

Copyright holders: Various, represented by SOCAN, Access Copyright and Re:Sound

Court: Supreme Court of Canada

Case numbers: 33800, 33922, 33921, 33888, 34210

For plaintiffs: Gowling Lafleur Henderson for SOCAN, Fasken Martineau DuMoulin for Rogers Communications, McCarthy Tétrault for Entertainment Software Association, Fasken Martineau DuMoulin for Province of Alberta and Osler Hoskin & Harcourt for Re:Sound

For defendants: Fasken Martineau DuMoulin for Bell Canada, Gowling Lafleur Henderson for SOCAN, Norton Rose for Access Copyright and McMillan for Motion Picture Theatre Associations of Canada


This case was selected as one of Managing IP’s Cases of the Year for 2012.

To see the rest, click on one of the cases below.

The 10 cases of the year

A fillip for the EU pharmaceutical sector

Relief for trade mark owners in red sole saga

Australian TV streaming service held to be illegal

Smartphone war hits front page in the US

Liberalising the EU’s software market

India allows parallel imports

Victory for fair dealing in Canada

Lacoste loses its trade mark in China

Google prevails in Android attack

EU test case clarifies class headings

Ten you might have missed

Canada: Ambiguous claims can invalidate patents

Russia: Certainty on parallel imports

Italy: TV formats win copyright for the first time

First FRAND cases litigated worldwide

Monsanto loses in Brazil

Data exclusivity backed by Mexican courts

China: A shift over OEM manufacturing

Authors in the US able to reclaim joint copyrights

Germany: Knitted trainers a sign of the future

India: Financial Times loses trade mark

more from across site and ros bottom lb

More from across our site

We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
AI
Tennessee has passed the ELVIS Act, a law that fights against AI models that mimic the voice and likeness of music artists
Rob Stien, chief communications and public policy officer at InterDigital, says the EU has forgotten innovators while trying to solve an issue that doesn’t exist
As Australia’s Qantm IP leans towards being acquired by a private equity company, sources discuss what it could mean for IP firms
Law firms that are conscious of their role in society are more likely to win work, according to a survey of over 23,000 in-house professionals
Nghiem Xuan Bac Pham, managing partner of Vision & Associates, discusses opportunities created by the US-China rift as well as profitability issues facing IP practices
Douglas Leite and two of his colleagues were intrigued by Bhering Advogados’s mission to grow its patent litigation practice
Each week Managing IP speaks to a different IP practitioner about their life and career
Counsel explain how pricing flexibility, patent agents and being business partners can help them maintain profitable patent prosecution practices
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
Gift this article