SCC Copyright Pentalogy 4 of 5: Alberta (Education) v. Access Copyright

In December 2011, The Supreme Court of Canada heard five major copyright cases. All five cases are appeals from decisions of the Canadian Copyright Board. The Court released its decisions in these five cases on July 12^th, 2012. This series will analyse each of the five decisions in turn. 

           In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), the Supreme Court of Canada decided 5-4 that photocopies of educational materials made at the initiative of teachers for students constitute a fair dealing and therefore not compensable under Access Copyright’s proposed tariff. 

Image by Renjith Krishnan

            In 2004, Access Copyright- the copyright collective that represents authors and publishers of literary and artistic works- proposed a tariff covering the copying of published texts in elementary and high schools across Canada (except for Quebec). The photocopies made by the schools were classified into five categories. There was no dispute that the first three categories qualified as fair dealing. Category 5 copies were not even discussed in the decision. Category 4, however, proved to be a point of contention. This category dealt with those photocopies made by teachers on their own initiative for students.

           The Copyright Board decided that though the copies made by teachers for their students fall under the allowable purposes of “research” or “private study”, they did not constitute fair dealing under the CCH fairness analysis. On judicial review, while the Federal Court of Appeal ordered the Copyright Board to reconsider another ground of opposition, they found the Board’s decision on fair dealing to be reasonable. 

            As I wrote in my analysis of the companion decision SOCAN v. Bell, fair dealing is a doctrine of copyright law that protects certain uses (or dealings) of copyright protected works that, but for the fair dealing doctrine, would constitute copyright infringement. Fair dealing is considered to be a limitation on the scope of the copyright in favour of the public interest. 

The Majority Opinion

Writing for the majority, Justice Abella concluded that the Copyright Board erred in its assessment of the fairness factors laid out in CCH. Strangely, the majority did not specifically address the “character of the dealing” although it is tacitly addressed in the assessment of the “amount of the dealing”. The “nature of the work” was also not assessed as the majority likely didn’t find it relevant in the case at bar.

•    Purpose of the dealing

The Copyright Board analysed the purpose of the dealing from the perspective of the copier (the teacher) rather than that of the user (the student). The majority wrote that while the perspective of the copier may be a valid consideration to keep in mind during the fairness analysis, the predominant point of reference should be that of the student. From that perspective, the purpose (or motive) of the dealing should be considered to be fair. 

Access Copyright also advanced an argument that the purpose of “private study” necessarily precludes the classroom setting. Justice Abella found this argument unconvincing. While university level students are expected to conduct research on their own, elementary and high school students are not. At these levels, part of a teacher’s job is to guide the student in their research. In Justice Abella’s words: “By Focusing on the geography of the classroom instruction rather than the concept of studying, The Board again artificially separated the teachers’ instruction from the students’ studying” (Emphasis in the original).

•    Amount of the dealing

The Board assessed the amount of the dealing based on the aggregate number of copies made by the teachers. As the Court opined in SOCAN v. Bell, this is the wrong approach. In considering the amount of the dealing, the decider must look at the quality rather than the quantity of the work taken. In this case, the Board itself found that the excerpts taken by the teachers were relatively short. The Board based itself on a passage from CCH written in obiter saying that had the same person submitted several requests for documents from the same series or collection in a short timeframe, the dealing may be unfair. 

The Court points out that the teacher is not making multiple copies for himself, but a single copy for each student. Again, if analysed from the perspective of the user, this factor militates in favour of a finding of fairness.  

•   Alternatives to the dealing

This factor assess whether or not it is truly necessary for the copies to be made or if there are other viable alternatives. The Board found that there were viable alternatives such as the purchasing of additional text books for each student. 

The majority makes clear that while an alternative, buying several different textbooks for each student is hardly viable. The cost of doing so would be astronomical and the schools would be forced to make do without those texts. As a result, the students would suffer by being forced to rely on only the textbook provided for and whatever materials may be found in the public domain. 

• Effect of the dealing on the work

At the Copyright Board, Access Copyright was unable to show a negative effect on the published works in its catalogue that was due to the category 4 photocopying. Instead, they relied on figures showing a decline in textbook sales of 30% over 20 years without showing a causal link between those figures and the category 4 copies. The Board nevertheless found the effect of the dealing on the work to weigh in favour of Access Copyright.

The majority exposed this finding as unjustified by the evidence. Furthermore, Justice Abella found it hard to believe that the copying of these short excerpts would compete with the sale of the entire textbook. As mentioned above, she found it more likely that if the copies aren’t made, the students will simply go without.

The Dissenting Opinion

            Writing for the dissenting Judges, Justice Rothstein disagreed with the majority stressing that more deference for the Copyright Board’s decision was warranted. He found that the Board’s analysis of the fair dealing factors was not unreasonable and therefore not a reviewable error.

            Justice Rothstein goes on to write that he does not view the Board’s assessing the purpose of the dealing from the teacher’s perspective to be unreasonable. He found that as much as the dealing was focused on the learning of the student, so too was it focused on the act of teaching. More specifically, the careful selection and copying of excerpts was done for the purpose of “instruction” as much as it was for study.

            The dissenting opinion also sided with access copyright on the distinction between “private” and “non-private” study.  Agreeing with the Federal Court of Appeal, Rothstein felt that even with a large and liberal interpretation, private study excludes study in a classroom setting.

            Justice Rothstein also disagreed with the majority regarding the Board’s assessment of the remaining factors, namely: the character of the dealing, the nature of the dealing, the amount of the dealing, alternatives to the dealing and the effect of the dealing on the work.

Conclusion

            As far as judging the case de novo is concerned, I find myself agreeing with the majority’s reasons. In spite of that, I believe Justice Rothstein was correct in showing deference to the Copyright Board’s decision. As a matter of administrative law, the Supreme Court’s decision in Dunsmuir v. New Brunswick requires that administrative tribunal decisions contain: “justification, transparency and intelligibility within the decision making process”.

On the question of standard of review, the majority in Rogers v. SOCAN decided that the correctness standard applies where a court and administrative tribunal have concurrent jurisdiction in first instance. Unfortunately, this isn’t helpful to the majority in this case because the fair dealing analysis is entirely fact based. While I think the Copyright Board came to the wrong conclusion, I don’t know that the majority made out a case for unreasonableness.

In sum, while I’m happy with the outcome of the Court’s decision, I feel that the dissenting Judges were more faithful to the prescriptions of Dunsmuir. And after all, don’t we all prize administrative law above all else? Sigh...

SCC Copyright Pentalogy 3 of 5: SOCAN v. Bell

                                             

In December 2011, The Supreme Court of Canada heard five major copyright cases. All five cases are appeals from decisions of the Canadian Copyright Board. The Court released its decisions in these five cases on July 12^th, 2012. This series will analyse each of the five decisions in turn. 
 

In Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, the Supreme Court of Canada (Justice Abella writing for the Court) decided whether or not 30-90 second previews of musical works that consumers can listen to before purchasing the work online constitute a fair dealing for the purpose of consumer research.

Image by Renjith Krishnan

            Fair dealing is a doctrine of copyright law that protects certain uses of copyright protected works that, but for the fair dealing doctrine, would constitute copyright infringement. Fair dealing is considered to be a limitation on the scope of the copyright in favour of the public interest. 

            Like ESA v. SOCAN (discussed here) and Rogers v. SOCAN (discussed here), SOCAN v. Bell is an appeal originating from a Copyright Board decision regarding the application of SOCAN’s Tariff 22- a tariff meant to capture the communication to the public by telecommunication of copyright protected musical works. The Board decided that while the downloading (overturned in ESA v. SOCAN) or streaming (affirmed in Rogers v. SOCAN) of complete musical works over the internet should be subject to Tariff 22, the previewing of short excerpts of songs should not be covered and constitutes a fair dealing for the purpose of consumer research. The Federal Court of Appeal affirmed the Board’s decision which was later affirmed by the Supreme Court. 

            The Fair dealing analysis as outlined in CCH Canadian Ltd. v. Law Society of Upper Canada consists of two parts: First, the dealing must fit into one of the allowable purposes: research, private study, criticism, review or news reporting. Second, providing the dealing does fit into one of the aforementioned categories, a “fairness analysis” is conducted. Six factors are considered: The purpose of the dealing; the character of the dealing; the amount of the dealing; the existence of alternatives to the dealing; and the effect of the dealing on the work. Each step will be analyzed in turn.

Fair dealing for the purpose of “consumer research”

            SOCAN contends that the Copyright Board and Federal Court of Appeal misconstrued the scope of “research” under fair dealing.  They identified what they thought were two errors: First, the Board gave too broad a definition to the term research; and second, that the purpose of the dealing should have been analysed not from the perspective of the consumer, but from that of the online service provider (OSP). 

            The Court disagreed with SOCAN’s first contention by exposing the latter’s definition of the word research as too narrow. CCH tells us that the fair dealing categories must be given a “large and liberal interpretation”. This is due in large part to the fact that the five categories (research, private study, criticism, review and news reporting) are exhaustive. As such, in order to maintain the balance between the strength of the copyright owner’s monopoly and the public interest of having artistic works widely disseminated, the existing categories-few as they may be- must be given a broad interpretation if they are to have a significant effect on the copyright landscape of Canada. SOCAN offered a dictionary definition of the word research which the Court viewed as far too restrictive in light of the large and liberal principle set down in CCH.

            SOCAN’s second argument with regards to the Boards application of the research category fared no better. The Supreme Court agreed with the Copyright Board and Federal Court of Appeal when they determined that the proper perspective for assessing whether the activity falls under fair dealing is that of the consumer. While the OSP benefits from the effect of the previews being made available (in that it increases the likelihood of a sale), all they are doing is facilitating the research of the consumer.

The “fairness” analysis

            Having successfully survived the first step, the dealing is now subject to the six factor test established in CCH to determine if it is, in fact, fair:

          Purpose of the dealing   

        

Under this factor, the Court must assess the true motive or purpose for the dealing. SOCAN argued that the purpose of the dealing was purely commercial. The Court disagreed. Again, SOCAN was looking at the dealing from the perspective of the OSP and not the consumer. The Court writes that when properly viewed from the perspective of the consumer, the raison d’être of the preview is to facilitate identification of the musical work for the sake of purchase.  This is consistent with fair dealing for the purpose of research.

     

       Character of the dealing

Under this category, the Court is called upon to analyse the number of times the copy is reproduced. In general, it would be considered less fair if several reproductions of the copyright protected work are made. By contrast, if only a single reproduction of the work is made, the dealing would be deemed more fair. 

SOCAN argued that on average, consumers accessed ten times as many previews as paid downloads. Based on this, they argued that this factor should militate in favour of a ruling of “unfairness”. The Court was not persuaded by this line of reasoning. Justice Abella pointed out that regardless of the number of times the short previews were accessed, no durable copy of the work was stored on the consumers computer. Because the preview is automatically deleted from the consumer’s computer the instant it is done playing, the bare number of previews listened to is not the appropriate measure of the character of the dealing. 

      Amount of the dealing

This factor examines the proportion of the entire work that is being used. Here SOCAN argued that the applicable perspective is the aggregate number of previews streamed as opposed to the proportion of the individual preview to the entire song. This is simply inconsistent with the Court’s explanation of this factor in the CCH decision. Justice Abella writes that CCH is clear “that “amount” means “quantity of the work taken””.

       Alternatives to the dealing

Under this factor, the Court must determine whether there are non-infringing alternatives to the dealing in question. If there is a way that the user can effectively achieve the same result without using the copyright protected work, the dealing will be deemed less fair. SOCAN submitted a number of ways in which, in their view, the OSP’s could effectively achieve their goal- allowing consumers to browse and identify works for purchase- without actually offering audio samples. SOCAN suggested the display of album art, user reviews and “textual descriptions”. 

The Court was unconvinced that any of these measures were nearly as effective as offering previews. Since these works are auditory in nature, there really is no substitute for hearing a part of it. People simply don’t choose the music they like by reading user reviews or “textual descriptions”.    

      Nature of the dealing

The nature of the dealing refers to whether or not the work was meant to be widely disseminated. For example, if a work is unpublished and there is no reason to believe that the rights holder intends on publishing it, use of the work may be deemed less fair. If, on the other hand, the goal of the work is to be widely disseminated, the dealing is more prone to a finding of fairness. SOCAN’s argument here seems off point and is fairly unconvincing. In fact, it more closely resembles an argument that may be made under the next and final factor. 

 

      Effect of the dealing on the work

Here the Court must assess the effect, negative of positive, that the dealing has on the exploitation of the original work. If the dealing has a negative effect on sales or dissemination of the original work, the dealing may be deemed less fair. In this case, it was clear that the only effect the use of previews has on the musical works was to facilitate the identification and eventual sale of those works. Not only is this not a negative for the rights holder, it is substantially positive.

SOCAN’s earlier ill-conceived argument under the nature of the dealing was that despite the fact that the works are already widely available, the availability of previews does not improve the dissemination of the work. Again, this argument is unconvincing and was largely brushed off by the Court.

Conclusion

            The Court reached a rather uncontroversial unanimous decision in favour of Bell et al. It is settled law in Canada that the fair dealing factors must receive a large and liberal interpretation. SOCAN’s arguments were mostly predicated on unduly restricting that interpretation.

            Their arguments with reference to the fairness factors were unpersuasive and at times even disingenuous. It is clear that the appropriate view point for a fair dealing analysis is that of the person actually conducting the dealing. While it may at times be a valid consideration that another party is facilitating the dealing, it should not override the logical perspective from which the dealing should be analyzed. If nothing else, this case is a restatement of CCH and a reaffirmation of the principle that the fair dealing categories must be given a large and liberal interpretation.

SCC Copyright Pentalogy 2 of 5: Rogers v. SOCAN

In December 2011, The Supreme Court of Canada heard five major copyright cases. All five cases are appeals from decisions of the Canadian Copyright Board. The Court released its decisions in these five cases on July 12^th, 2012. This series will analyse each of the five decisions in turn. 

                In Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, the Supreme Court of Canada dealt with the question of whether or not services that allow live streaming of music on their websites are “communicating a work to the public by telecommunication” as per Section 3(1)(f) of the Copyright Act (the Act). Where this decision deals with the question of streaming over the Internet, the companion decision, ESA v. SOCAN (discussed here) deals with the very same provision of the Act with regards to downloading.

Image by Renjith Krishnan

            The appeal is based on a decision of the Copyright Board to authorize a tariff (Tariff 22) requested by SOCAN- the copyright collective responsible for administering performance rights in musical works- slated to cover remuneration for musical works transmitted over the Internet.  

            Writing for the Court, Justice Rothstein (Justice Abella concurring on the issue of standard of review) allowed the appeal in part. Since the Court’s decision in ESA v. SOCAN determined that downloads over the internet are not communications to the public by telecommunication, the reasons in this decision dealt strictly with the matter of streaming. On that issue, the Court disallowed the appeal. 

            The decision turned on the meaning to be given to the words “to the public” in Section 3(1)(f) of the Act. The Appellants (Rogers, Shaw, Bell and Telus) made a number of arguments though two of them were given greater attention by the Court:

The Appellants argued that a communication “to the public” requires that a single transmission reach several people. In other words, they contended that a one-to-one transmission could not be considered a communication to the public. The appellants based this contention on the determination in CCH Canadian Ltd. v. Law Society of Upper Canada that transmissions of individual copyrighted works to lawyers by the Great Library were deemed private communications. 

            The Appellants also argues that when a one-to-one transmission of a single copy of a musical work is initiated by the client (a “pull” model), no communication to the public has taken place. This argument flows from the fact that traditionally, the telecommunication right was associated with broadcasting (the “push” model). In traditional broadcasting, a signal from a single point is transmitted to the public at large, or in the case of subscription services like cable and satellite television, whoever has access to the signal. The argument is also bolstered by the Appellants’ contention that the intention of the communication should be examined.

            The Appellant's first argument deals with the nature of the transmission itself where the second deals with who is initiating (or who is intending) the transmission. Through their entire argument, the Appellant stressed that the Court must examine the transmissions on an individual basis. In fact, for both of the above arguments to stand, it would be imperative for the SCC to examine the matter from the perspective that each discreet transmission constitutes an isolated event. The Court rejected these arguments. 

            Dealing first with the contention that a one-to-one transmission by its very nature cannot be a communication to the public, Rothstein rejected the Appellant’s application of CCH to the case at bar. In CCH the Great Library at Osgoode Hall offered a service whereby members of the Law Society of Upper Canada could request copies of documents- or excerpts thereof- contained in the libraries vast collection. If approved, the requested material would be sent to the requester by fax. Agreeing with the Federal Court of Appeal, the Supreme Court in CCH determined that a communication to the public must be “targeted at an aggregate of individuals”. However, Chief Justice MacLachlin, writing for the Court in CCH expressly limited the ruling to the facts of that case. She reasoned that had several repeated transmissions of the same work been sent by fax to a number of different recipients, such a behavior might constitute a communication to the public. However, no evidence was adduced in that case to show such activity. 

            The Appellants second argument- the fact that because the communication is initiated by the recipient and not the sender, it is not a communication to the public- was also rejected by the Court. The Appellants attempted to argue that we must look at “the intention of the sender in accomplishing a given transmission”. The argument goes that when a sender transmits a “blast communication” (an e-mail sent to thousands of recipients for example), the sender has “taken it upon himself to send [the work] out”. On the other hand, when the client initiates the transfer on an individual basis, the intention to conduct the transfer is not on the part of the sender but the recipient. Justice Rothstein wrote that to abstract the consideration of which party had the intention to initiate the communication is to disregard the essential character of the communication. Citing the Copyright Board’s reasons, Rothstein points out that the downloads are made available to the public. Anyone with the appropriate device (a computer with an internet connection) can theoretically access the work upon paying the fee. It would be difficult to argue here that the intention was not to have the same work transmitted multiple times. On the contrary, the goal is to sell as many streams or downloads as possible. By examining the activity in context, the true intention- that the same copyrighted work be purchased as many times as possible- is revealed and the superficially valid argument that we should view the activity from the perspective of the initiator falls by the wayside. 

            Rothstein goes on to say that to look at the activity of the Appellants on a transmission by transmission basis is to ignore the principle based approach to copyright. On the Appellants’ view, on-demand services such as pay-per-view or Netflix would not be compensable under section 3(1)(f) of the Act. This conclusion is unacceptable because it bases the copyright holder's right to remuneration on the content distributor's choice of business model. Put differently, why should content distributers not have to pay a royalty for 100 individual transmissions initiated by the receiver when they do have to pay for the transmission of the very same content over the very same network when it is initiated by the distributers themselves?

Conclusion

            All in all the Supreme Court issued a tight and well reasoned ruling. While the Appellants’ argument’s weren’t entirely unconvincing and were often intuitively appealing, Justice Rothstein was right in pointing out their inconsistency with the principle of copyright law that the overall context of the communication should be considered. If the work is protected by copyright, and the activity in question is one that the copyright holder has the exclusive right to do, then whether the communications occur one at a time or whether they are initiated by the recipient are irrelevant as to whether the communication is “to the public”.  

            Upon some reflection, it seems a tad insincere to contend that because the communications happen on a one-to-one basis, they are therefore necessarily private and thus not “to the public”. As the Court makes amply clear, the point of offering musical works for stream or download is to make money. Money is made by maximizing the number of times these works are accessed by clients. “The public”, as it were, has full access to the entire catalogue of works and the fact that they initiate a pull-based transaction as opposed to the content distributer initiating a push-based one is not decisive in determining whether the communication is to the public or not. 

            So, it would seem from the determinations in ESA v. SOCAN and Rogers v. SOCAN that whether the transmission of a copyrightable work over the Internet is a communication to the public by telecommunication depends on whether the content is being streamed or downloaded.

SCC Copyright Pentalogy 1 of 5: ESA v. SOCAN

In December 2011, The Supreme Court of Canada heard five major copyright cases. All five cases are appeals from decisions of the Canadian Copyright Board. The Court released its decisions in these five cases on July 12^th, 2012. This series will analyse each of the five decisions in turn. 

            In Entertainment Software Association and Entertainment Software Association Canada v. Society of Composers, Authors and Music Publishers of Canada, the Supreme Court of Canada dealt with section 3(1)(f) of the Copyright Act, the exclusive right to “communicate a work to the public by telecommunication”. 

The Court affirmed 5-4 that a tariff covering the communication of musical works over the internet should not apply to musical works included in videogames downloaded by end users. In a lengthy dissent, Justice Rothstein disagreed with the Majority saying he would have upheld the decision of the Copyright Board which was affirmed by the Federal Court of Appeals. 

Photo by Renjith Krishnan

This decision was one of two issued by the Court dealing with Section 3(1)(f). The other, Rogers v. SOCAN, will be discussed in the next instalment of this series. 

            The Appellant ESA is an entity representing the interests of videogame publishers and distributors with regards to digital delivery of their games over the internet. The Respondent SOCAN is the Canadian copyright collective responsible for the licensing of performance rights and the collection of performance royalties in musical works. 

            In 2007, the Copyright Board issued a decision approving a proposed tariff by SOCAN slated to cover the transmissions of musical works over the Internet. This Tariff (known as Tariff 22) impacted a number of different groups, among them the videogame industry. As Justice Abella -writing for the Majority- points out, the standard practice in the videogame industry is for the videogame publisher to negotiate a license with the copyright holder of the music included in the game before it is sold to the public. That is to say that the fee is negotiated without regard to the actual number of copies sold. Tariff 22 would force the online distributers of videogames to pay an additional royalty on a per transmission basis for each copy of a game sold over the internet. 

The Majority Opinion 

            Siding with ESA, the Majority declared that the Copyright Board misapplied Section 3(1)(f) of the Copyright Act. That section reads as follows:

“3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

…

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,” (Emphasis added).

            According to the Majority, the Copyright Board committed two errors: 1) They misconstrued the provision in light of the legislative history of the Act and; 2) failed to consider the guiding principle of technological neutrality. 

            Dealing first with the legislative evolution of the provision, the Majority explains that “communication” in the copyright context has historically been associated with the performance right and not the reproduction right. This extension of the performance right was born out of Canada’s obligations under the 1886 Berne Convention and the subsequent “Rome Revision” of 1928. The Rome Revision was a response to the growing popularity of broadcasting musical works over radio. Under the 1931 Copyright Amendment Act, a radio broadcast of a musical work was hence forth to be considered a performance of that work. The Majority explains that the communication right, originally conceived for radio broadcasts, was only meant to cover “acoustic representations of the work”. 

            SOCAN argued that when the Copyright Act was amended in 1988, a substantive change to the law was made. Under the 1931 Act, Section 3(1)(f) read: “(f) In case of any literary, dramatic, musical or artistic work, to communicate such work by radio communication.”(emphasis added).  The 1988 amendment to the Copyright Act changed Section 3(1)(f) to read as follows:  “(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,” (Emphasis added). According to SOCAN’s submission, this change served to remove the previous requirement that the communication be an acoustic representation of the work. When a videogame is downloaded by a user, the musical works embedded in the game are not “performed” as such. They are transmitted without there having been any acoustic representation. 

            The Majority tells us that the swapping of the term radio communication for telecommunication  

was not meant to depart from the practice of the communication right being associated with performance. 

The Majority also proclaimed that the Copyright Board’s decision was incompatible with the principle of technological neutrality. Technological neutrality is the concept that copyright law should apply equally and in the same way regardless of the medium in which the work is reproduced (or performed). In this case, allowing Tariff 22 to apply to the online sale and distribution of videogames would be in direct conflict with that goal. Where a copy of a game enclosed in a box and sold in stores would not be captured by the tariff, the very same game, if downloaded over the internet, would be captured by the tariff. 

In both cases, the videogame publisher has already paid to license the music embedded in the game. The Majority of the Court could see no reason why when the very same product that is sold in stores is transmitted over the Internet, the rights holders should be entitled to a second layer of compensation.  In Justice Abella’s own words, the Internet should be viewed as a “technological taxi” that delivers durable goods that are, in substance, the same as those purchased in stores. 

The Dissenting Opinion

            Justice Rothstein (writing for Justices Lebel, Fish and Cromwell), disagreed with the Majority and would have dismissed the Appeal. Furthermore, Rothstein’s disagreement with the Majority is on no small point. Where the Majority views the Section 3(1) copyright as a single right that can take a number of forms, Justice Rothstein views Section 3(1) as a “bundle of independent statutory rights”. In his view, the language of Section 3(1) makes clear that the owner of copyright in a work may take advantage of the rights listed in each of the subparagraphs independently. Those rights may be layered regardless of the possible multiplicity of compensations for a single act. 

            On the matter of technological neutrality, the dissenting Judges acknowledge that their interpretation of section 3(1)(f) is at odds with the principle. However, they note that though technological neutrality is a desirable trait and that courts should generally strive to give the Act a technologically neutral interpretation, such considerations are secondary to the fact that: “...courts must respect the language chosen by Parliament- not override it.” Justice Rothstein adds that despite the desirability of technological neutrality as a principle, it is not a statutory requirement. In a jesting tone, Justice Rothstein refers to Justice Abella’s earlier stated analogy in saying: “In many respects, the Internet may well be described as a technological taxi; but taxis need not give free rides.”

            Much of Rothstein’s decision deals with statutory interpretation. Citing CCH Canadian Ltd. v. Law Society Of Upper Canada: “[T]he words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

 

The Appellant’s argument dealt with Parliament’s use of the terms “communication” and “transmission”. An often cited principle of statutory interpretation says that when the legislator uses two different terms that may ordinarily have overlapping meaning, a separate meaning should be ascribed to each word. If not, why would Parliament not simply have used one term universally?

Following from that reasoning, ESA argued that a communication is more than a simple transmission. In their view, in order for a work to be communicated, it must be transmitted in some perceivable form. When the videogame is downloaded to the customer’s computer there is no disputing that a transmission has occurred. However, that transmission should not be considered a communication in the same way that a song is communicated by telecommunication when it is streamed by a customer as an audio file. 

Justice Rothstein rejected this line of reasoning. He countered with a maxim of statutory interpretation of his own- that Parliament is presumed to give terms their ordinary meaning if those terms are not specially defined. Upon examining some dictionary definitions, Justice Rothstein concluded that communication and transmission, when given their ordinary meanings may be used interchangeably. Since these terms are not defined in Section 2 of the Act, they should be given their ordinary meaning. In giving the words their ordinary meaning, Rothstein found no reason to conclude that a communication need be perceivable by humans. 

In response to ESA’s contention that the communication right provided for in Section 3(1)(f) is merely a variant of the performance right, Justice Rothstein reiterates the fundamental schism between his and the Majority’s ideology on copyright. According to him, the Section 3(1)(f) communication right is entirely independent of the right to perform under Section 3(1). Furthermore, the Majority’s conclusion that subparagraphs (a) to (i) of Section 3(1) are only examples of the rights listed in paragraph (1)- namely to produce, reproduce, perform or publish- is incorrect. Rothstein cites 3(1)(i), the right: “(i) in the case of a musical work, to rent out a sound recording in which the work is embodied,”. He points out that it would be hard to assimilate the act of renting out a copy of a sound recording under producing, reproducing, performing or publishing. For this reason alone, Justice Rothstein’s construction of the Section 3 copyright is at odds with the Majority of the Court.

In interpreting Justice Pigeon’s decision in Composers, Authors and Publishers Assn. Of Canada Ltd. v. CTV Television Network Ltd., Rothstein concludes that communication is a broader term than performance. In other words, a performance may be communicated, but not all communications are performances. 

In contrast with the Majority’s appraisal of the 1988 amendment to the Copyright Act, Justice Rothstein’s contention is that when Parliament updated the language of Section 3(1)(f), they wiped out any exclusive association of that section with conventional broadcasting. 

Justice Rothstein also dealt with several of ESA’s other arguments, namely: Comparison with American jurisprudence (para. 102); ESA’s argument that the sole purpose of the transmission is to deliver the videogame (para. 105); ESA’s claim that allowing this interpretation of Section 3(1)(f) may lead to unintended consequences (para. 108) and; Policy concerns raised by ESA (para. 118). 

Conclusion

            While Justice Rothstein`s opinion is definitely not without merit, I would tend to agree with the Majority of the Court. I feel that the dissenting opinion didn’t show enough deference for the principle of technological neutrality. Rothstein is correct in pointing out that technological neutrality is not mandated by statute. Nevertheless, it remains an important principle of interpretation in copyright law. In fact, I would argue that technological neutrality gains more and more importance as we move further into an era where rapid technological development makes it practically impossible for legislation to account for all that technology makes possible.

            While it is clear that copyright is multifaceted I must agree with the Majority in that subparagraphs (a) to (i) of Section 3(1) are simply instances in which the four rights conferred by the first paragraph (produce, reproduce, perform and publish) find application. 

Subparagraph (a) clearly implies all four activities; Subparagraphs (b) to (e) have to do with producing or reproducing a work and; Subparagraph (f)- as per the Majority`s interpretation- is associated with performance. 

Subparagraphs (g),(h) and (i) are slightly more nuanced but may still be assimilated under the four categories of Section 3(1). 

Subparagraph (g), which deals with public exhibition of an artistic work, can be understood as an extension of the performance right. An art exhibition is to a painting what a concert is to a musical work. This interpretation is consistent with a certain neutrality as it pertains to the mediums applicable to different categories of copyrightable works. 

Subparagraphs (h) and (i) deal with the renting out of a work. With all deference to Justice Rothstein’s opinion to the contrary, I would argue that renting out is a form of distribution. While Section 3(1) of the Copyright Act doesn’t expressly mention the right to distribute a work it is not an insurmountable stretch to assimilate distribution under the definition of publishing. The Oxford Dictionary (Online) defines “publish” as: “prepare and issue (a book, journal, or piece of music) for public sale”. Wikipedia defines “publishing” as: “the process of production and dissemination of literature, music, or information”. To “prepare and issue” or “disseminate” seem like activities largely synonymous with the act of distributing (and by extension renting out) a work.

This decision provides important clarification on the scope of the Section 3 right in general and the right to communicate a work by telecommunication in particular. While this case answers how Section 3(1)(f) is applied with reference to the downloading of copyright protected works over the Internet, it is in the companion decision Rogers v. SOCAN where the Court addresses the act of streaming copyright protected works. Together, these two decisions clarify the scope of Section 3(1)(f) as it pertains to the Internet.