[d at DCC] Supreme court cases: will we get clarity, or more confusion?

[Keith Rose]

On 2011-10-02, at 9:41 AM, Russell McOrmond wrote:

> 
> Keith,
> (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 
> existing law).

Russell,

I've followed these cases to varying degrees, so I'm more familiar with some of them than others.  I have to be a little careful what I say about live cases, though.  As you know, I will be articling with a firm that is involved in some of these cases.  There are conflict of interest issues I need to be concerned with.

James Gannon has a summary of the 5 cases that will be heard together at <http://jamesgannon.ca/2011/09/10/the-supreme-court-of-canada-copyright-tariff-pentalogy/>.

I don't really disagree with your summary of issues.  The main questions are the scope of fair dealing in a couple of different contexts, the meaning of communication "to the public" and the extent to which rights can attach to unauthorized derivatives of authorized uses.

Recently, the SCC granted leave for a sixth case: the value-for-signal case (see <http://decisions.fca-caf.gc.ca/en/2011/2011fca64/2011fca64.pdf>).  That is mainly a broadcasting case, but it deals with the Copyright Act peripherally.  The question is whether the CRTC can authorize a fee under the Broadcasting Act for a retransmission that is not subject to a remuneration right under the Copyright Act.

There is a seventh case for which leave to appeal to the SCC has not yet been granted or denied (so far as I know): the satellite radio case.  That's an interesting case in a couple of respects, particularly for the tech sector.  Among other things, it considers the territorial scope of Canadian copyright law: when transmissions cross borders, what constitutes reproduction in Canada?  It also deals with authorization in relation to enabling technologies.

This latter case may have the most application to p2p.  The communication to the public cases will also be somewhat relevant, although C-11 will (if it is enacted) change the definition.

It would be very difficult to limit a p2p distribution analysis to a single exclusive right.  There is unquestionably reproduction involved, but there's a question of who does it and where.  There may also be authorization of reproduction, which is a separate right.  Beyond that, there is likely to be communication to the public, at least under the FCA's interpretation or the new definition in C-11, and authorization of that.  If the subject matter is music, these would apply separately for the performer, the maker of the sound recording, and the author.  So your "worst case" scenario is, in my view, the likely reality.  There will be many hands in the pot.

KR