The Copyright Pentalogy

Description

In the summer of 2012, the Supreme Court of Canada issued rulings on five copyright cases in a single day. The cases represent a seismic shift in Canadian copyright law, with the Court providing an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users’ rights, while emphasizing the need for a technology neutral approach to copyright law.
The Court’s decisions, which were quickly dubbed the “copyright pentalogy,” included no fees for song previews on services such as iTunes, no additional payment for music included in downloaded video games, and that copying materials for instructional purposes may qualify as fair dealing.
The Canadian copyright community soon looked beyond the cases and their litigants and began to debate the larger implications of the decisions. Several issues quickly emerged.
This book represents an effort by some of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. The diversity of contributors ensures an equally diverse view on these five cases, contributions are grouped into five parts. Part 1 features three chapters on the standard of review in the courts. Part 2 examines the fair dealing implications of the copyright pentalogy, with five chapters on the evolution of fair dealing and its likely interpretation in the years ahead. Part 3 contains two chapters on technological neutrality, which the Court established as a foundational principle of copyright law. The scope of copyright is assessed in Part 4 with two chapters that canvas the exclusive rights under the copyright and the establishment of new “right” associated with user-generated content. Part 5 features two chapters on copyright collective management and its future in the aftermath of the Court’s decisions.
This volume represents the first comprehensive scholarly analysis of the five rulings. Edited by Professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, the volume includes contributions from experts across Canada. This indispensable volume identifies the key aspects of the Court's decisions and considers the implications for the future of copyright law in Canada.

- This book is published in English. 

Sujets

• Droit et juridique
• Intellectual Property
• Law
• Copyright

Informations

• Publié par: University of Ottawa Press
• Date de parution: 27 avril 2013
• Nombre de lectures: 0
• EAN13: 9780776620855
• Langue: English

Extrait

Edited by Michael Geist
The Copyright Pentalogy
How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law
©
University of Ottawa Press
© Michael Geist, 2013 under Creative Commons License Attribution- Non Commercial Share Alike 3.0 (CC BY-NC-SA 3.0) http://creativecommons.org/licenses/by-nc-sa/3.0/
The University of Ottawa Press acknowledges with gratitude the support extended to its publishing list by Heritage Canada through its Book Publishing Industry Development Program, by the Canada Council for the Arts, by the Canadian Federation for the Humanities and Social Sciences through its Aid to Scholarly Publications Program, by the Social Sciences and Humanities Research Council, and by the University of Ottawa.
We also gratefully acknowledge The Canada Research Chair program, whose financial support has contributed to the publication of this book.
www.press.uottawa.ca
Library and Archives Canada Cataloguing in Publication

The copyright pentalogy : how the Supreme Court of Canada shook the foundations of Canadian copyright law/ Michael Geist, editor. (Law, technology and society) Electronic monograph issued in various formats. Also issued in print format.
ISBN 978-0-7766-2085-5

1. Copyright--Canada. I. Geist, Michael, 1968-

II. Series: Law, technology and society
KE2799.C664 2013 346.7104’82 C2013-901347-4
KF2995.C664 2013
Contents
Acknowledgements
Introduction by Michael Geist
Standard of Review and the Courts
1 Of Reasonableness, Fairness and the Public Interest: Judicial Review of Copyright Board Decisions in Canada’s Copyright Pentalogy – Graham Reynolds
2 Courts and Copyright: Some Thoughts on Standard of Review – Paul Daly
3 The Context of the Supreme Court’s Copyright Cases – Margaret Ann Wilkinson
Fair Dealing
4 Fair Use 2.0: The Rebirth of Fair Dealing in Canada – Ariel Katz
5 Fairness Found: How Canada Quietly Shifted from Fair Dealing to Fair Use – Michael Geist
6 The Arithmetic of Fair Dealing at the Supreme Court of Canada – Giuseppina D’Agostino
7 Fair Dealing Practices in the Post-Secondary Education Sector after the Pentalogy – Samuel E. Trosow
8 Fairness of Use: Different Journeys – Meera Nair
Technological Neutrality
9 Technological Neutrality: (Pre)Serving the Purposes of Copyright Law – Carys J. Craig
10 Technological Neutrality in Canadian Copyright Law – Gregory R. Hagen
Copyright Collective Management
11 Copyright Royalty Stacking – Jeremy de Beer
12 The Internet Taxi: Collective Management of Copyright and the Making Available Right, after the Pentalogy – Daniel Gervais
The Scope of Copyright
13 Righting a Right: Entertainment Software Association v SOCAN and the Exclusive Rights of Copyright for Works – Elizabeth F. Judge
14 Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law – Teresa Scassa
Contributors
Acknowledgements

Publishing a peer-reviewed book with this many contributors typically requires several years of work. Thanks to a special group of contributors, publishers, editors, and reviewers, that time frame shrank to less than nine months.
Thanks are due first and foremost to the contributors. Each was presented with challenging timelines to complete their submissions and often asked to submit revised versions based on reviewer comments within days. Despite these exceptionally tight timelines, each contributor embraced this project with great enthusiasm and professionalism. Canada is fortunate to have such an exceptional group of academic experts working in the intellectual property field.
Once the initial articles were delivered, three additional sets of contributors emerged. First, thanks to Bat Chen Stilmann-Hirsch, a doctoral student at the University of Ottawa, who coordinated student reviews and conducted additional checks of each article. Bat Chen’s work was exceptional and helped to ensure a smooth review process. Second, thanks to a terrific group of student editors, including Diana Marina Cooper, Michael Currie, Margaret Kim, Shirley Pelizer, Kent Sebastien and Melissa VanderHouwen, who provided exceptional citation and fact-checking reviews. Their work was particularly valuable given the decision to use the University of Ottawa’s Law and Technology Journal citation guide, which adopts an open access model to legal citation. Third, thanks to the international panel of peer reviewers who provided useful suggestions that improved each article within incredibly difficult deadlines.
Thanks also goes to Anne Louise Mahoney, who copy edited the entire manuscript and oversaw its completion with additional edits, proofing, and layout, and to Jennifer Marston, who painstakingly checked all the notes for consistency of style.
Thanks to the University of Ottawa Press, including Marie Clausén, Lara Mainville, and Rebecca Ross, who offered unfailing support for this book project. This book is the first in a new series for the press. I am proud to serve as collection editor for the new law, technology and society collection, which will be distinguished both by cutting-edge publications that address the intersection of law, technology and societal policies as well as by the availability of all books published in the collection under open access licences.
Thanks as well to the Social Sciences and Humanities Research Council of Canada and the Canada Research Chair program, as this book benefited from their financial support.
Thanks also to my colleagues and family for their support throughout this project. It is a great honour to work with such an exceptional, supportive group of colleagues at the University of Ottawa.
My wife, Allison, is the foundation of our family and a constant source of support without whom this book and my career would not be possible. Jordan, Ethan, and Gabrielle continue to amaze each day, as they blossom into teenagers (and would-be teenagers) intent on shaping the world around them. Copyright plays an increasingly important role in that world; it is hoped that this book will provide some insight into how the Supreme Court of Canada captured the attention of the global copyright community with an emphasis on users’ rights, technological neutrality, and a legal framework that balances the interests of all stakeholders.


Michael Geist
Ottawa, Ontario
February 2013
Introduction

Copyright cases typically reach the Supreme Court of Canada (the Court) only once every few years, ensuring that each case is carefully parsed and analyzed. On 12 July 2012, the Court issued rulings on five copyright cases in a single day, an unprecedented tally that shook the very foundations of copyright law in Canada. In fact, with the decisions coming just weeks after the Canadian government passed long-awaited copyright reform legislation, Canadian copyright law experienced a seismic shift that will take years to sort out.
Not surprisingly, the immediate coverage of the Court’s decisions, which were quickly dubbed the “copyright pentalogy,” focused on the specific outcomes for the litigants, including wins for Bell and computer giant Apple (no fees for song previews on services such as iTunes), 1 the entertainment software industry (no additional payment for music included in downloaded video games), 2 and the education community (copying materials for instructional purposes may qualify as fair dealing). 3
Yet it took little time for the Canadian copyright community to begin to debate the larger implications of the decisions. Several issues quickly came to the fore. First, the cases provided an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users’ rights. The Court first raised the notion of balancing creator rights and user rights in 2004. Publisher and creator groups had urged the Court to retreat from its user rights approach, claiming it was merely a metaphor, yet the Court used these cases to re-emphasize the importance of users’ rights. The user rights analysis affects virtually all copyright cases,forcing all courts to ensure that there is a fair balance between the interests of creators and users. Moreover, the users’ rights framework has attracted growing attention worldwide, as Canadian copyright law is increasingly cited as the paradigm example for emphasizing both creator and user rights.
Second, the Court endorsed a technology-neutral approach to copyright law. For example, in striking down the demand for payment for music included in downloaded video games, it noted that there is “no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet.” 4 Instead, it likened the Internet to a “technological taxi” and warned that additional payments for a downloaded copy violated the principle of technological neutrality. It stated that the “principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user.” 5
In doing so, the Court effectively embedded a technology-neutral principle into the law that will extend far beyond these particular cases, as future litigants will undoubtedly argue that existing exceptions can be applied to new uses of copyright works to ensure technological neutrality.
Third, the Court continued its expansion of fair dealing by interpreting it in a broad and liberal manner. In Bell, where Bell and Apple argued that 3