The Supreme Court granted leave to appeal on
September 4, 2014 in another copyright case, Canadian
Broadcasting Corporation / Société Radio-Canada v.
SODRAC 2003 Inc. The appeal is from the decision of the
Federal Court of Appeal which ruled that broadcasters must pay
royalties for ephemeral recordings in accordance with the 1990
decision of the Supreme Court in Bishop v. Stevens.
In the Court of Appeal, CBC argued that Bishop v
Stevens was no longer good law, having been overruled by a series
of decisions of the Court which had, in various circumstances, made
references to the principle of technological neutrality in
construing the Copyright Act. CBC particularly relied on the
decision of the Supreme Court in ESA v SOCAN which it contended had
fundamentally changed the well established law that broadcasters
payment of royalties to communicate works to the public did not
affect their obligations to also pay royalties in respect of
reproductions made to effect the communications.
The Court of Appeal rejected CBC's arguments holding that
the principle of technological neutrality could not override the
clear language of the Act which conferred the exclusive right of
reproduction on owners of music works. The Court of Appeal after
referring to several passages from the ESA case stated:
In my view, this passage reaffirms the fundamental distinction
between reproduction and performance (communication to the public
by telecommunication) that the Court articulated in Bishop v.
Stevens. Nothing in this passage, or elsewhere in
ESA, would authorize the Board to create a category of
reproductions or copies which, by their association with
broadcasting, would cease to be protected by the Act. ESA did not explicitly, or by
necessary implication, overrule Bishop v. Stevens.
As a result, I am unable to accept the Broadcasters'
argument that the comments about technological neutrality in
ESA have changed the legal landscape to the point where
the Board erred in finding that incidental copies are protected by
copyright. The Broadcasters' argument with respect to
technological neutrality fails.
Interestingly, the panel of three Justices who granted leave to
appeal were Justices Moldaver and Abella who wrote the majority
opinion in the ESA case and Justice Rothstein who wrote
the minority opinion.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
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