[d at DCC] Supreme court cases: will we get clarity, or more confusion?
russell at flora.ca
Sun Oct 2 09:41:48 EDT 2011
(or others in the list)
Have you been following the various copyright related cases in front
of the supreme court? I haven't seen a complete list, but know that it
grew from 5 cases recently to a few more. Would love to hear
summaries, including how people wish they would go (what would make for
good policy, separate from what they think the SCC might rule based on
Few I've heard of (and my attempt to find the right case in the SCC
site -- I may have got these wrong)
Alberta (Minister of Education) v. Canadian Copyright Licensing
Agency (Access Copyright)
- Deals with "fair dealing"
Rogers Communications Inc. et al. v. Society of Composers, Authors
and Music Publishers of Canada
- Back to the Tariff 22 stuff, and communication to the public of music
Entertainment Software Assn. v. Society of Composers, Authors and
Music Publishers of Canada
- online distribution of video games that contain background music.
This one should be interesting, as SOCAN is trying to treat the online
distribution of software containing music the same as a radio
communication of music. It's IMHO an insane idea, but one where I
wouldn't want to guess where the SCC will go on it. This is one where
modernisation of the act itself may be needed to create better
definitions around video games/etc. Waiting for a ruling on this, and
determining what the right outcome should have been, may be something
that will delay C-11. Hopefully they will do this given it may be
decades before we see another substantive copyright bill because
governments like to do ugly massive omnibus bills and then pretend the
issue goes away..
Society of Composers, Authors and Music Publishers of Canada v. Bell
- Are previews part of fair dealing, or something that will be tariff'd
Re: Sound v. Motion Picture Theatre Associations of Canada
- Similar in some ways to the video game case, where the soundtrack
is being treated as separate from the movie by a music collective. I
thought part of the authorising the music to be added to the
movie/game/etc was that the music would then be considered part of the
whole work (and subject to the rules of a movie), and that the music
wouldn't be considered separately this way. Unfortunately the act
defines a sound recording to exclude "any soundtrack of a
cinematographic work where it accompanies the cinematographic work", but
doesn't clarify whether a video game is simply an interactive
My hope is that these cases will provide clarity to a question I've
had for years about what P2P or other online distribution of music is.
"Theory 1: P2P as a "communication by telecommunications", where a copy
is kept by recipient."
"Theory 2: P2P as simple "copying", similar to if physical media had
The music industry would fair better if theory 1 was adopted, while
the record labels would remain in control if theory 2 were adopted. The
labels have been quite successful in lobbying for theory 2, and their
ongoing ability to pick-pocket composers and musicians.
The worst case scenario, and something that may be part of these
cases, is that it is both -- meaning that there is multiple
overlapping-yet-conflicting legal theories that will all be demanding
permission and/or payment for the same activity.
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
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