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In five major decisions handed down on 12 July 2012,
resulting from cases heard in December 2012, the Supreme Court of
Canada significantly broadened the definition of "fair
dealing" under the Canadian Copyright Act.
In Alberta (Education) v. Canadian Copyright Licensing
Agency (Access Copyright),2012 SCC 37 , the court held that the making of
photocopies by teachers, hitherto determined to fall outside fair
dealing, is in fact covered by the definition – the
"predominant purpose" test applying to the teacher as
well as the user (student) – it being to promote private
research and study.
In Society of Composers, Authors and Music
Publishers of Canada v. Bell Canada, 2012 SCC 36, the court held that fair dealing
covers song previews that consumers might hear before downloading
digital music from online retailers.
In Entertainment Software Association v. SOCAN,
2012 SCC 34, the court disallowed royalties on
top of licensing agreements for music used in films and music used
in video games downloaded over the Internet. The court held that
there was a categorical difference between downloaded and streamed
music. Canada's top court also announced that online music
stores will not have to pay royalties on song previews to
publishers and songwriters: Rogers Communications Inc. v.
Society of Composers, Authors and Music Publishers of
Canada,2012 SCC 35.
Finally, the court also determined that record labels and
recording artists should not be eligible for royalties from
movie and TV soundtracks, as they are considered categorically
different than traditional sound recording: Re: Sound v.
Motion Picture Theatre Associations of Canada,2012 SCC 38.
In related news Bill C-11, Canada's new copyright
law, received royal assent last week. The
Bill, which will become law at a date to be determined, is the
result of more than a decade of efforts aimed at reforming Canadian
copyright law and bringing it into synch with the US and EU.
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