Canadian Supreme Court embraces fair use in landmark decisions

Court smacks down copyright collectives, Big Content.

by Cyrus Farivar

On Thursday, the Supreme Court of Canada ruled in five copyright cases heard by the court last year, setting the scene to re-write much of Canada’s intellectual property law as it pertains to digital media.

In the five cases, the Court established broader definitions for fair dealing (down here below the Great White North, we call our version "fair use"), in particular, for photocopying textbooks. Previously, a public umbrella body called Access Copyright charged additional fees, often passed directly to students, for university-given access to copyrighted textbooks and similar work. The Court trashed much of that setup, finding that photocopying textbooks for or by students for private study or research is fair dealing, and likely will save Canadian universities and students millions of dollars annually.

Additionally, the Court ruled in favor of the Entertainment Software Association, which asked for new tariffs imposed on copyrighted music used in video games be overturned. The Court also overturned federally imposed royalty fees by Canada’s top ISPs and media companies for music downloading, as the individual downloads are not a "public performance." That does not apply to streaming services, however.

The Court also found that samples of songs offered in iTunes and similar services were considered fair dealing and did not require new royalties. The final case confirmed that record labels and artists were not eligible for additional royalties on television and film soundtracks, as they are different than usual sound recordings.

Canada’s copyright law guru, Michael Geist, lauded the decisions, citing in particular, a portion of the decision written by Justice Rosalie Abella, which provides a "broad approach" to future pro-fair dealing arguments.

"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," Abella wrote. "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."