Canada: Copyright Year In Review — 2016

Last Updated: January 20 2017
Article by Kevin Sartorio

This article highlights noteworthy Canadian copyright law decisions and developments from 2016. For more updates on the latest intellectual property trends and insights, sign up to receive our IP Report newsletter.

Rogers Communications Partnership v. SOCAN, 2016 FCA 28

In 2006, the Copyright Board certified Tariff 24 (Ringtones) for the period 2003-2005. A judicial review of this decision by the potential payors (corporations selling ringtones) was dismissed and leave to appeal to the Supreme Court of Canada was eventually denied.1 The Board certified a second Tariff 24 (Ringtones) in June 2012 for the period 2007-2013. No review was sought of that decision.  In July 2012, the Supreme Court of Canada issued two decisions (ESA & Rogers) in different contexts which determined that when musical works are delivered to consumers by way of downloads, this does not constitute a communication of a musical work to the public by telecommunication.2

Corporations stopped making Tariff 24 payments to SOCAN and asked the Board, in effect, to rescind Tariff 24, retroactively to 2003, in light of ESA and Rogers. The Board refused. The Corporations brought an action against SOCAN in the Federal Court of Canada seeking to recover the monies paid under Tariff 24.  SOCAN defended the action on the basis that the prior tariff proceedings were res judicata and could not be attacked once the appeals of those decisions were concluded (or, in the case of the second decision, never taken).

A Rule 220(1)(a) order issued for six questions of law to be determined prior to trial. A Federal Court Judge heard the motion and answered all six. On appeal, the Federal Court of Appeal concluded that three of the six questions were not pure questions of law and ought not to have been answered. One of the remaining questions was whether the Plaintiffs' claim has already been finally decided against them (res judicata / issue estoppel). The Federal Court of Appeal found that circumstances for issue estoppel exist, subject only to the trial judge's ultimate discretion to apply or not apply the doctrine to the Plaintiffs' claims.

Fair Dealing

The defence of fair dealing was made out by the Defendant in 1395804 Ontario Ltd operating as Blacklock's Reporter v. Canada (Attorney General), 2016 FC 1255. Blacklock published articles regarding the Department of Finance suspected to be inaccurate. A subscription to Blacklock's website was purchased and articles forwarded internally for comment and consideration. Blacklock brought a claim for copyright infringement for what it said was unauthorized distribution of its copyrighted articles to others.

Fair dealing for research purposes was made out. Articles were legally obtained (subscription), not used for a competing or commercial purpose, distribution was limited and no terms of use were brought to the subscriber's attention.

The defence of fair dealing failed in Canadian Standards Assn v PS Knight Co, 2016 FC 294. The Defendant had reproduced a copy of one of the Plaintiff's commercial publications (the Canadian Electrical Code) and sold it in competition to the Plaintiff at 1/3rd the Plaintiff's retail price. The defence of fair dealing did not apply, even though arguably end users might use the Defendant's book to engage in research and even though the Plaintiff's work had been adopted by reference into provincial electrical laws.

Useful Articles

In Corocord Raumnetz GmbH v. Dynamo Industries Inc, 2016 FC 1369, the Defendant sold playground equipment it admitted it modeled on the Plaintiff's equipment. It defended copyright infringement proceedings by arguing that section 64(2) of the Copyright Act applied because the Plaintiff had sold more than 50 copies of its equipment, being "useful articles" to which artistic designs had been applied.

While more than 50 units had been sold world-wide, less than 50 had been sold by the Plaintiff in Canada.

The Court performed a statutory interpretation of section 64(2) and concluded that the relevant issue is worldwide sales by the Plaintiff of the useful article, and not merely their Canadian sales. As a result, the Defendant's defence succeeded.


In Davydiuk v Internet Archive, the Defendant moved for summary judgment on the Plaintiff's claims for infringement in relation to certain videos and photographs. The Plaintiff did not have original copies (meaning the first copies) of his videos or photographs. The Defendants argued that without the first copies, a trial judge could never assess the skill and judgment to create these works (originality). The Court rejected the argument.

The Defendants also argued that the photographs in question were mere screen captures from the videos, and that still images should not in law attract copyright (being purely mechanical captures from the videos). This was also rejected.

In Maltz v. Witterick, 2016 FC 524, a film maker alleged copyright in the film had been violated by an author's book which, all agreed, had been inspired by the story told in the film.  The Court concluded that the only similarities in expression related to what the Court described as facts, and the Court affirmed that copyright will not be attributed to facts, even those that the Plaintiff attempted to describe as "large facts."

Finally, in Geophysical Service Inc. v. Encana Corp., 2016 ABQB 230, the Court concluded that

offshore marine seismic surveys (squiggly or zebra lines) were an artistic work – similar to a map, plan or chart – or a compilation, since the product was the result of the selection or arrangement of data or sound recordings. Human input was involved continuously. The Court refused to characterize the words as essentially facts or ideas.

Crown Copyright

Keatley Surveying Ltd v. Teranet Inc, 2016 ONSC 1717 is a long-running dispute between land surveyors and the private sector company that manages the provinces' electronic land registry system. Plans and other documents prepared by land surveyors are registered in the province's land registry system. Provisions of the Registry Act and the Land Titles Act provide that all plans submitted for registration become "the property of the Crown." The Defendant, Teranet, provides online copies of registered plans to the public for a fee. Teranet does not pay fees or royalties to surveyors who prepare the plans.

One issue was whether copyright in the Plaintiffs' plans became vested in the Crown by virtue of section 12 of the Copyright Act.

The Court concluded that the plans are not in the first instance "prepared by or under the direction" of the Crown. Also, the mere fact that someone else's work is ever published by the Crown does not automatically vest copyright in the Crown under section 12. However, in this case, since ownership of property in the plans was transferred to the Crown upon deposit (under provincial property statutes) at that point the Crown did obtain "control," and its then publishing of the works transferred copyright to the Crown by section 12.

New Media

In Bell Canada v. 1326030 Ontario Inc (, 2016 FC 612 and in Media v. Bell Canada, 2016 ONSC 7273, the Courts granted interlocutory injunctions against retailers of services designed to offer Canadians "free" or cheaper television programming.

In, the Federal Court of Canada granted an injunction against retailers of pre-loaded "plug-and-play" set-top boxes, pre-loaded with applications to allow consumers to access TV programs and movies without cable or other subscriptions. The Respondents argued that they were mere "conduits" who could afford themselves of the defence provided in section 2.4(1) of the Copyright Act but this was rejected. The Court said their activities "went above and beyond" selling a simple piece of hardware, and instead related to the content of the copyright-protected programming.

In VMedia, the Defendant began offering retransmission of over-the-air television signals to subscribers who had VMedia's proprietary set-top box. These channels included CTV and CTV2, both owned by Bell. Section 31 of the Copyright Act sets out, in effect, a compulsory licensing regime that permits "retransmitters" (who perform a function comparable to cable retransmission system) to communicate works to the public by telecommunication without an express copyright license from content owners. However, excluded from the definition "retransmitters" are "new media retransmitters," defined to mean someone whose retransmission is lawful under the Broadcasting Act "only by reason of the Exemption Order for New Media Broadcasting Undertakings..." (emphasis added). VMedia claimed that its new service was not captured by the definition, because it enjoyed an additional license under the Broadcasting Act. However the Court rejected this argument, finding that its Internet services were only authorized under the legislation by the Exemption Order.

Legislative Developments

Bill C-11 (An Act to Amend the Copyright Act (Access to Copyrighted Works or Other Subject-Matter for Persons with Perceptual Disabilities) received royal assent on June 22, 2016. This Act amends the Copyright Act and implements the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled to facilitate access for such persons to copyright materials.

On February 4, 2016, Canada signed the Trans-Pacific Partnership (TPP). If ratified, arguably the most notable change to Canada's copyright law would be the extension of the term of copyright to life of the author plus 70 years.


1. [2008] 2 SCR vi (note), 2008 CarswellNat 3234 (SCC).

2. Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, [2012] 2 SCR 231 ("ESA"); Public Performance of Musical Works, Re, 2012 SCC 35 ("Rogers").

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.

Events from this Firm
14 Sep 2017, Seminar, Birmingham, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

18 Sep 2017, Seminar, London, UK

Our annual event as part of the London Design Festival is now in its fifth year. We would be delighted if you are able to join us again.

21 Sep 2017, Seminar, London, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.