The CBC, like all television broadcasters, makes copies of
various works - such as music and other content - in the course of
preparing programs for broadcast. So-called "synchronization
copies" are used to add musical works to a program. Then a
"master copy" is made, when the music synchronization is
complete. The master copy of the completed program is loaded for
broadcast, and various internal copies are made of the master copy.
These copies are called "broadcast‑incidental
copies". In a nutshell, these are copies made in the process
of production of a program, as distinct from the
broadcast of the program.
In one of the more esoteric copyright topics to make it to the
Supreme Court, the decision in Canadian Broadcasting Corp. v. SODRAC
2003 Inc., 2015 SCC 57 (CanLII), examined whether
these "broadcast‑incidental copies" require a
separate license because they would constitute an infringement of
copyright if made without consent of the copyright owner. Or,
rather, are they caught within the standard broadcast license that
CBC would have negotiated with rightsholders, such as SODRAC, and
thus they wouldn't require a separate license... Still with
The Court decided that "broadcast‑incidental
copying" engages the reproduction right in Section 3 of the
Copyright Act. These so-called "ephemeral
copies" are not exempted by ss. 30.8 and 30.9 of the Act. The
Court noted that "While balance between user and
right‑holder interests and technological neutrality are
central to Canadian copyright law, they cannot change the express
terms of the Act." Importantly, the Court also cautioned that
"The principle of technological neutrality recognizes that,
absent parliamentary intent to the contrary, the Act should not
be interpreted or applied to favour or discriminate against any
particular form of technology."
In the end the decision was sent back down to the Copyright
Board for reconsideration of valuation of the license in accordance
with the principles of technological neutrality and the balance
between balance between user and right‑holder interests.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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