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    Considering Canada’s Supreme Court Decisions In This Week’s WIPO Proceedings

    Published on 18 July 2012 @ 9:42 am

    By for Intellectual Property Watch

    As members of the international intellectual property community prepare for their third day of the 24th session of the Standing Committee on Copyright and Related Rights (SCCR), they are told to keep the spirit of Beijing alive, referring to the recently concluded Beijing Treaty on Audiovisual Performances. However, there is reason to keep another country’s spirit in copyright law in mind as well. Last week, the Supreme Court of Canada handed down five critically important copyright judgments that may very well colour the proposals made by member states at the SCCR.

    The Canadian Court emphasised two major principles of the Copyright Act in the rulings: first, to obtain a balance between promoting the public interest in the encouragement and dissemination of works and providing a just reward for creators and second, to maintain technological neutrality.

    Two of the decisions pertained to fair dealing (the Canadian parallel to fair use) with the Court leaning toward a large and liberal interpretation consistent with landmark case CCH v. Law Society of Upper Canada. In Province of Alberta v. Access Copyright, the Court held that photocopying performed by K-12 (kindergarten to 12th grade) schoolteachers for the purpose of distribution to their students (but not at the request of) constitutes fair dealing under “research or private study”.

    [Update:] Canada also recently passed a new copyright bill (Bill C-11) that added “education” as an enumerated purpose qualifying for the fair dealing exemption.

    At the SCCR, the African Group submitted several draft proposals concerning copyright limitations and exceptions for educational and research purposes, including the very congruent Article D which sets out the following as an authorised action:

    The use of works for educational purposes shall authorize individuals or institutes referred to in this Treaty to distribute a copy or copies of all or part of the work, including making available to pupils or students, the originals or copies thereof the work, or copies when these are necessary to illustrate the teaching.

    Similarly, Brazil submitted that the following would not constitute violation of copyright:

    The reproduction, translation and distribution of excerpts of existing works of any kind … as a pedagogical resource for the use of teachers with the purpose of illustration in the context of educational or research activities, to the extent necessary justified by the non-commercial purpose to be achieved, provided that the source, including the author’s name is indicated, unless this turns out to be impossible.

    Paul Whitney, a Canadian librarian with twenty years experience in copyright issues and currently a board member of the International Federation of Library Associations, praised the Court’s decision. He observed that a teacher, like an internet service provider, serves as a conduit and thus, the analysis of whether an activity was done for research must be conducted from the end user’s perspective.

    This reasoning was also seen in SOCAN v. Bell where the Court unanimously held that the use of short song previews constitutes research within the meaning under the fair dealing doctrine. Justice Abella, who delivered the judgment, upheld the Copyright Board’s decision to consider whether previews are for the purpose of “research” from the perspective of the user.

    Like Access Copyright, the definition of “research” was interpreted broadly:

    Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.

    The definition of “research” for the purposes of copyright limitations and exceptions for educational and research purposes has yet to appear at the SCCR but any submission that is too broad or too narrow is bound to stir up controversy.

    The remaining three decisions also involved musical works. In Re:Sound v. Motion Picture Theatre Associations of Canada, the Court unanimously held that film soundtracks are excluded from the definition of “sound recording” when they accompany a cinematographic work.

    In Rogers v. SOCAN, the majority held that while a single transmission of a musical word over the internet does not constitute “communication to the public” within the meaning of the Act, the same cannot be said where there is a series of repeated transmissions of the same work to different recipients.

    In Entertainment Software Association v. SOCAN, the majority rejected the Copyright Board’s conclusion that the internet delivery of a permanent copy of a video game containing musical works amounted to a “communication” under the Act. Justices Abella and Moldaver opined that the Board’s decision “violates the principle of technological neutrality, which requires that the Act apply equally notwithstanding the technological diversity of different forms of media.”

    Technological neutrality is certainly on the minds of many member states at the SCCR. A proposal from Ecuador, Peru and Uruguay on copyright limitations and exceptions for educational and research purposes centres on the “[o]bligation to update and expand exceptions for educational purposes, in particular the digital environment.”

    The Canadian decisions have been raised this week in the SCCR by South Africa and Nigeria, but the government of Canada has not yet spoken on the issue.

    Nancy Situ is a researcher with Intellectual Property Watch. She is a JD Candidate at Osgoode Hall Law School in Toronto. Her interests lie within copyright and trademark policy, especially pertaining to freedom of expression and challenges in an online environment. She is currently an IPilogue editor and the Senior Editor-in-Chief of Obiter Dicta.

    [Editor's Note: The Canadian "pentalogy" of copyright decisions has generated significant response from Canadian bloggers. Some of those are below:]

    http://www.michaelgeist.ca/
    http://excesscopyright.blogspot.ch/
    http://www.barrysookman.com/
    http://samtrosow.wordpress.com/

    Nancy Situ may be reached at info@ip-watch.ch.

     

    Comments

    1. IP Osgoode » Considering Canada’s Supreme Court Decisions in this week’s WIPO Proceedings says:

      [...] Situ is a JD Candidate at Osgoode Hall Law School. This article first appeared on Intellectual Property Watch’s blog and was written from Geneva where she is currently attending the 24th session of the Standing [...]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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