Lawyers offer predictions on Supreme Court’s copyright ‘pentalogy’

OTTAWA—A panel of copyright lawyers offered a preview Tuesday in what to expect from a “pentalogy” of five copyright cases to be heard at the Supreme Court next month. The Supreme Court announced in September that it will hear a series of five copyright cases over the course of two days on Dec. 6 and 7. David Fewer, counsel with the Canadian Internet Policy and Public Interest Clinic (CIPPIC), who is intervening in the cases for the organization, said at the panel discussion Tuesday that a theme in all of the cases is whether the layering of rights for various uses in copyright law is affecting the system's efficiency. “Why ought we to allow multiple bites at the apple? Is that efficient? Are we achieving any kind of societal aims by doing things in that way?” he said at a panel discussion at the University of Ottawa titled “The SCC Copyright Pentalogy.” Fewer questioned whether the administration of copyright supports innovation and creators and whether the Copyright Board should grant new royalties for each new digital use of works. “Or are we slowing down the rate at which cultural goods get into the marketplace and ultimately slowing down the rate at which creators get paid?” In two related cases, Entertainment Software Association, et al. v. SOCAN (case No. 33921) and Rogers Communications et al. v. SOCAN (33922), the court will look at whether the distribution of a work online constitutes a communication of that work to the public under the Copyright Act. The Federal Court of Appeal has determined that a download is a communication to the public, approving copyright collectives like SOCAN to apply to the Copyright Board for performance rights tariffs from online music distributors. In a similar case to be heard next month, SOCAN v. Bell Canada, et al. (case No. 33800), the court will look at whether companies can freely provide song previews online under the Copyright Act's fair dealing exceptions for research. Another case, Province of Alberta et al. v. Access Copyright (33888), will consider whether the photocopying from textbooks for teaching in the classroom for students from kindergarten to Grade 12 can be considered under the Copyright Act's fair dealing exceptions. In Re:Sound v. Motion Picture Theatre Associations of Canada (34210), another case to be heard next month, the Supreme Court will look at whether recording artists and record companies should be compensated with royalties when their music is played in movies and on television. Glen Bloom, a partner with Osler, Hoskin & Harcourt LLP, also sat on the panel and said another theme the cases have in common is the role and scope of “technological neutrality” in copyright, suggesting the court's decisions could set precedents for the terminology. “There hasn't really been a discussion in the jurisprudence as to what that means,” Bloom said. Bloom is representing Music Canada in SOCAN v. Bell, the Association of Universities and Colleges of Canada (AUCC) in Alberta v. Access Copyright and copyright collective Re:Sound in Re:Sound v. MPTAC. Gerald Kerr-Wilson, a partner with Fasken Martineau in Ottawa who is acting for BCE Inc. in SOCAN v. Bell, and for Rogers Communications Inc. in Rogers v. SOCAN, also sat on the panel Tuesday, and said another theme linking the cases could be an attempt by the Supreme Court to address a “standard of review problem”—or a review of how strict and in-depth the courts should be when they review Copyright Board decisions. Asked for their predictions on which direction the court will go in some of the cases, Kerr-Wilson suggested that, in the Alberta v. Access Copyright case, the court will establish new parameters in fair dealing and send the issue back to the Copyright Board, where it was originally decided, to hear new evidence. Bloom predicted that, in ESA v. SOCAN, the appellants will win. He said the “appellants have got it right” in their arguments that a communication must involve a performance aspect and be more than a mere download. “It's all about the construction of the communications right. I think ESA has a very strong argument that communication is something different than transmission,” he said. Bloom also predicted that, due to the nature of the appellants' arguments in Rogers v. SOCAN, which is focused on the meaning of communicating a work “to the public,” the court will side with SOCAN. “On the Rogers case, I'm not so optimistic, and I think the appeal there may not be allowed,” Bloom said. But the two cases address the same issue, and if the court allows one of the appeals, that would deny SOCAN the right to seek performance rights tariffs from distributors of online music or video games incorporating copyrighted music. Kerr-Wilson said his clients, major telecom providers that operate online music services for mobile devices, would find that outcome acceptable. “They're activities would be excluded from the scope of the right, so I think they'd be OK with that outcome,” he said. Fewer agreed that the ESA has the winning argument in its case, arguing that communication and telecommunication are separate activities. “Which transmissions qualify as communications?” he said. A source familiar with the cases suggested to The Wire Report that cases 33921 and 33922 will be heard together on Dec. 6, followed by a hearing for 33800 on the same day, time permitting. Those cases are expected to be followed by separate hearings for 33800, 33888 and 34210 on Dec. 7, in that order. The Supreme Court is expected to issue four decisions, one for each hearing. Kerr-Wilson noted that Parliament is now closer than ever to passing a major suite of amendments to the Copyright Act in the form of Bill C-11—which comes at the same time as the Supreme Court review of a host of related issues. He said in ESA v. SOCAN and Rogers v. SOCAN, Bill C-11 would answer the legal question in SOCAN's favour by clarifying that a work transmitted on the Internet to a member of the public constitutes a communication to the public. Bill C-11 also adds education to the uses exempted under the Copyright Act's fair dealing exceptions, which would affect the Alberta v. Access Copyright case. “In a way we're going to have pre-interpretations of some newly amended law, and we're going to have newly amended law that makes landmark Supreme Court rulings almost obsolete from the get-go.” Although the Conservative government had said it wanted to pass Bill C-11 by the holiday break in December, that now appears unlikely, but the legislation could become law by next summer, Kerr-Wilson said. “We may have, who knows, decisions and proclamations coinciding on the same day,” Kerr-Wilson said. Despite the Supreme Court's activity on the copyright file, the Conservative government is expected to proceed with the passage of Bill C-11. Heritage Minister Moore suggested in September that, if necessary, Parliament could make further amendments to the Copyright Act following decisions from the Supreme Court. sdoyle@thewirereport.ca

Lawyers offer predictions on Supreme Court’s copyright ‘pentalogy’

Broadcast | November 23, 2011

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