Canada: Supreme Court Reaches Decisions In Copyright Cases

On July 12, 2012 the Supreme Court of Canada released decisions in five appeals on copyright cases. Each of the appeals stem from the Federal Court of Appeal's judicial review of the Copyright Board of Canada decisions on issues arising out of the collective administration of copyright. In each case, the Supreme Court decided in favour of objectors to copyright tariffs that had been certified by the Board1. The copyright collectives were unsuccessful in all four of the five appeals, and only partially successful in the fifth appeal.

The five decisions have three common themes: 1) the Court reaffirmed the principle that the Copyright Act seeks to balance between protecting the interests of copyright owners and providing access to, and dissemination of, owners' creations; 2) the Court has also reaffirmed the importance of technological neutrality in construing the Copyright Act. The Act is to be applied equally to technologically different forms of media; and 3) decisions in foreign jurisdictions, including in the United Kingdom and Australia, must be viewed with caution due to the differences in statutory provisions and the scope of copyright protection. 

In Entertainment Software Association v. SOCAN, 2012 SCC 34, SOCAN, the collective representing the Canadian performing rights of millions of Canadian and international music composers and publishers, had obtained certification by the Copyright Board of a tariff for the communication to the public by telecommunication of musical works as a result of the downloading of video games which include such works from online services. The appellants claimed that the downloading of video games did not involve a communication. In a five to four split decision the Supreme Court agreed. A download is merely a more efficient means of delivering copies of games to consumers than traditional means. The communication right has historically been associated with the right to perform a work and not the right to reproduce a work. The download of a video game is a single activity that delivers a durable copy to an end user. That one activity does not also involve a communication. As a result of the Supreme Court's decision, no public performance royalties are payable for downloading video games that include musical works. 

In Rogers Communications Inc. v. SOCAN, 2012 SCC 35, SOCAN had obtained certification of a tariff for the communication to the public by telecommunication of musical works as a result of permanent downloads, limited downloads and on-demand streams of sound recordings of musical works. The appellants claimed that a point-to-point Internet transmission was not "to the public" and that therefore the communication right did not apply to downloads or streams. The decision in the Entertainment Software case disposed of the appeal in respect of downloads as they are not communications. The Supreme Court held that, for point-to-point communications of the same work to an aggregation of individuals, it did not matter whether or not those individuals received the communication at the same or different places or the same or different times. By making the musical works available through on-demand streams to anyone with Internet access, online music services communicate the musical works to the public. As a result of the Supreme Court decision, no public performance royalties are payable for downloading musical works. They are however payable by online music services for on-demand streams.

In Alberta v. Access Copyright, 2012 SCC 37, Access Copyright had obtained certification of a tariff for the reproduction of published works by K-to-12 schools. In calculating the royalty payments the Copyright Board included, as compensable copies, copies of short extracts made by teachers and provided to students as required reading, complementing their main textbooks. The Board had rejected a claim that the copying was fair dealing for the purpose of research or private study on the grounds that the true purpose was instruction or non-private study and that therefore the fair dealing factors denied fair dealing. In another five to four split decision the Supreme Court endorsed its prior landmark fair dealing decision in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 and provided further guidance on applying fair dealing. As fair dealing is a user's right, the allowable purpose of the dealing is that of the user. Teachers have no separate purpose of instruction; they facilitate students' research and private study. Studying and learning are essentially personal, whether engaged in with others or in isolation. Buying books for each student was not a realistic alternative to reproducing short extracts to supplement student textbooks. Balancing all the factors, the Supreme Court concluded that the making of copies of short extracts constituted fair dealing. The Supreme Court's decision broadens the scope of fair dealing, particularly in the context of non-profit education. Although K-to-12 schools will have to pay royalties for their reproduction of published works, their payments will not include payments for making copies of short extracts for required reading by students.

In SOCAN v. Bell Canada, 2012 SCC 36, SOCAN sought a tariff for communicating 30-second previews of musical works made available by online music services for consumers. The Copyright Board concluded that the use of previews constituted fair dealing for research purposes and that previews would not be included in a tariff targeting online music services. The Supreme Court agreed. Research is to be given a generous interpretation and is a low threshold in the first step of the two step fair dealing analysis. Consumers used previews for conducting research to identify what music to purchase. There were reasonable safeguards in place to ensure that consumers were in fact using previews for that purpose. The previews were streamed, shorter, and often lesser quality than the works available for purchase. These safeguards prevented the previews from replacing the works. SOCAN argued the quantity of music heard through previews was significant. Although the quantity in the aggregate was significant, when analysing fair dealing the amount should be assessed on an individual use.

In Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38, Re:Sound had sought a tariff, on behalf of performers and record labels, for the public performance and communication to the public by telecommunication of sound recordings embodied in soundtracks of motion pictures exhibited at cinemas and television programs broadcast over television. The Copyright Board had concluded that the definition of "sound recording" in the Copyright Act excluded any sound recording embodied in a soundtrack when it accompanied the motion picture or television program. The Supreme Court agreed, finding that a reading of the words in the definition in their entire context and in their grammatical and ordinary sense supported the Board's conclusion. The Court also found that the language of comparable provisions in United Kingdom and Australian copyright legislation is fundamentally different than the Canadian definition. Therefore the decision of the High Court of Australia on which the appellant relied on was not followed. Finally, the Court concluded that the Board's interpretation was consistent with the scheme of the Act, the intention of Parliament and Canada's international obligations under the Rome Convention (International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations).

In Alberta v. Access Copyright, 2012 SCC 37, Marcus Klee was counsel for the intervenors,  Association of Universities and Colleges of Canada and Association of Canadian Community Colleges. 

In SOCAN v. Bell Canada, 2012 SCC 36, Glen Bloom was counsel for the appellant, Canadian Recording Industry Association. 

In Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38, Mahmud Jamal, Glen Bloom, Marcus Klee and Jason MacLean were counsel for the appellant, Re:Sound Music Licensing Company.


1 Although in Rogers Communication Inc. v. SOCAN the Court found in favour of the collective on the principal legal issue, the appeal was allowed in part.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Gowling WLG
Blake, Cassels & Graydon LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Gowling WLG
Blake, Cassels & Graydon LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions