For those who are interested in recent cases and developments about copyright and related matters there have been several developments since the last entry.

Impact of International Obligations on Interpreting the Copyright Act

There are several basic principles that courts apply in interpreting the Act. The Federal Court of Appeal recently dealt with one of those principles in Entertainment Software Assoc. v. Society Composers 2020 FCA 100. The court said, in interpreting legislation implementing international obligations, that, if after interpreting the domestic legislation following the modern approach to statutory interpretation, the Court concludes that the legislation is clear and has no patent or latent ambiguities, the Court must give it its authentic meaning and apply it. This must be done even if it conflicts with international law. Given the Canadian constitutional arrangements, international law cannot be used to displace or amend the authentic meaning of domestic legislation. The consideration of international law in legislative interpretation, like legislative interpretation itself, must be done in a neutral, non-results-oriented, non-tendentious way.

Impact of the Making Available Right

In the same decision, the Court considered the effect of adding the making available right to the Act. The Court allowed an application for judicial review and quashed the decision of the Copyright Board. The Court said that looking at the reasons, whether it intended to do so or not, the Board skewed its analysis in interpreting subsection 2.4(1.1) in favour of one particular result.

The Court said that the subsection 2.4(1) does not create a new exclusive right. The Board used a “deeming provision” to create a right which, simultaneously, was and was not part of the communication right. When the deeming provision is set aside, all that is left is what the Board itself described as a “preparatory act”. This is consistent with Parliament's use of the word “includes” in subsection 2.4(1.1). It would be contrary to the policy of the Act to establish a tariff relating to a preparatory step as this would constitute disaggregating rights to add an additional layer of royalties.

If there is no new exclusive right, there was no basis for the Board's conclusion that a stream did not merge with the making-available which preceded it to justify payment of two separate fees. Since there is only one right at stake, the only issue is whether the right has been triggered, and the only fees payable are those payable for exercising the right.

The Court suggested that leave to appeal to the Supreme Court of Canada should be sought since the proper interpretation of subsection 2.4(1.1) is an important issue.

Documentaries and Fair Dealing

In Wiseau Studio, LLC v. Harper 2020 ONSC 2504 it was said that if the fair dealing was for the purpose of criticism, the criticism may be strongly expressed and unbalanced without forfeiting the fair dealing defence; an author's remedy for malicious and unjustified criticism lies (if it lies anywhere) in the law of defamation, not copyright. Like the term “fair comment” in defamation law, “fair dealing” is a misleading term, as it is not determined by the plaintiff's, or the court's, sense that something is “unfair,” but is based on a range of factors that respects the rights of speakers and users to communicate information and views to the public without undue restrictions. A documentary can be many things and can be positive or negative about its subject. If a documentary uses copyrighted material for the purposes of criticism, review or news reporting, such use is for an allowable purpose under the fair dealing provisions of the Act.

Standard of Judicial Review

In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) (Valilov) the Supreme Court of Canada recalibrated the approach to the standard of review of the substantive merits of administrative decision-making.

The court in Vavilov discusses the situations in which a reviewing court should derogate from the presumption of a reasonableness review and perform a correctness review. Vavilov identifies only five situations of this sort: legislated standards of review, statutory appeal mechanisms, constitutional questions, general questions of law of central importance to the legal system and questions regarding the jurisdictional boundaries between two or more administrative bodies.

In Vavilov, the Supreme Court effectively adopted the view that administrative decisions are easier or harder to set aside depending on certain contextual factors that liberate or constrain the decision-maker. As a practical matter, some decisions are more likely to survive reasonableness review because they are relatively unconstrained. But other decisions may be less likely to survive because they are relatively more constrained.

In Entertainment Software Assoc. v. Society Composers the Board was heavily constrained in what it could acceptably do by

a) the text, context and purpose of subsection 2.4(1.1) and the accepted methodology for considering these elements

b) case law decided in this area such as Entertainment Software Association and Rogers Communications Inc. concerning the meaning of a “communication to the public by telecommunication”

c) case law concerning the interrelationship between domestic law and international law and the general primacy of the former over the latter.

In its interpretation of subsection 2.4(1.1), the Board offended these constraints and reached an unreasonable decision.

A New Criminal Offense Concerning Trade Secrets

The Criminal Code has been amended to add an offence relating to trade secrets.The amendment was made by the Canada–United States–Mexico Agreement Implementation Act, S.C 2020, c.1, which implements the Agreement between Canada, the United States of America and the United Mexican States, revises the North America Free Trade Agreement. The section is as follows:

391 (1) Everyone commits an offence who, by deceit, falsehood or other fraudulent means, knowingly obtains a trade secret or communicates or makes available a trade secret.

(2) Everyone commits an offence who knowingly obtains a trade secret or communicates or makes available a trade secret knowing that it was obtained by the commission of an offence under subsection (1).

(3) Everyone who commits an offence referred to in subsection (1) or (2) is guilty

(a) of an indictable offence and is liable to imprisonment for a term not exceeding 14 years; or

(b) of an offence punishable on summary conviction.

(4) For greater certainty, no person commits an offence under subsection (1) or (2) if the trade secret was obtained by independent development or by reason only of reverse engineering.

(5) For the purpose of this section, trade secret means any information that

(a) is not generally known in the trade or business that uses or may use that information;

(b) has economic value from not being generally known; and

(c) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Originally published by GSNH, October 2020

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.