Michael Geist - The COPYRIGHT PENTALOGY: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law

University of Ottawa Press

Michael Geist, 2013 under Creative Commons License Attribution- Non Commercial Share Alike 3.0 (CC BY-NC-SA 3.0) http://creativecommons.org/licenses/by-nc-sa/3.0/

The University of Ottawa Press acknowledges with gratitude the support extended to its publishing list by Heritage Canada through its Book Publishing Industry Development Program, by the Canada Council for the Arts, by the Canadian Federation for the Humanities and Social Sciences through its Aid to Scholarly Publications Program, by the Social Sciences and Humanities Research Council, and by the University of Ottawa.

We also gratefully acknowledge The Canada Research Chair program, whose financial support has contributed to the publication of this book.

www.press.uottawa.ca

Library and Archives Canada Cataloguing in Publication

The copyright pentalogy : how the Supreme Court of Canada shook the foundations of Canadian copyright law/ Michael Geist,
editor.
(Law, technology and society)
Electronic monograph issued in various formats.
Also issued in print format.

ISBN 978-0-7766-2085-5

1. Copyright--Canada. I. Geist, Michael, 1968

II. Series: Law, technology and society

KE2799.C664 2013 346.710482 C2013-901347-4

KF2995.C664 2013

Publishing a peer-reviewed book with this many contributors typically requires several years of work. Thanks to a special group of contributors, publishers, editors, and reviewers, that time frame shrank to less than nine months.

Thanks are due first and foremost to the contributors. Each was presented with challenging timelines to complete their submissions and often asked to submit revised versions based on reviewer comments within days. Despite these exceptionally tight timelines, each contributor embraced this project with great enthusiasm and professionalism. Canada is fortunate to have such an exceptional group of academic experts working in the intellectual property field.

Once the initial articles were delivered, three additional sets of contributors emerged. First, thanks to Bat Chen Stilmann-Hirsch, a doctoral student at the University of Ottawa, who coordinated student reviews and conducted additional checks of each article. Bat Chens work was exceptional and helped to ensure a smooth review process. Second, thanks to a terrific group of student editors, including Diana Marina Cooper, Michael Currie, Margaret Kim, Shirley Pelizer, Kent Sebastien and Melissa VanderHouwen, who provided exceptional citation and fact-checking reviews. Their work was particularly valuable given the decision to use the University of Ottawas Law and Technology Journal citation guide, which adopts an open access model to legal citation. Third, thanks to the international panel of peer reviewers who provided useful suggestions that improved each article within incredibly difficult deadlines.

Thanks also goes to Anne Louise Mahoney, who copy edited the entire manuscript and oversaw its completion with additional edits, proofing, and layout, and to Jennifer Marston, who painstakingly checked all the notes for consistency of style.

Thanks to the University of Ottawa Press, including Marie Clausn, Lara Mainville, and Rebecca Ross, who offered unfailing support for this book project. This book is the first in a new series for the press. I am proud to serve as collection editor for the new law, technology and society collection, which will be distinguished both by cutting-edge publications that address the intersection of law, technology and societal policies as well as by the availability of all books published in the collection under open access licences.

Thanks as well to the Social Sciences and Humanities Research Council of Canada and the Canada Research Chair program, as this book benefited from their financial support.

Thanks also to my colleagues and family for their support throughout this project. It is a great honour to work with such an exceptional, supportive group of colleagues at the University of Ottawa.

My wife, Allison, is the foundation of our family and a constant source of support without whom this book and my career would not be possible. Jordan, Ethan, and Gabrielle continue to amaze each day, as they blossom into teenagers (and would-be teenagers) intent on shaping the world around them. Copyright plays an increasingly important role in that world; it is hoped that this book will provide some insight into how the Supreme Court of Canada captured the attention of the global copyright community with an emphasis on users rights, technological neutrality, and a legal framework that balances the interests of all stakeholders.

Michael Geist

Ottawa, Ontario

February 2013

Copyright cases typically reach the Supreme Court of Canada (the Court) only once every few years, ensuring that each case is carefully parsed and analyzed. On 12 July 2012, the Court issued rulings on five copyright cases in a single day, an unprecedented tally that shook the very foundations of copyright law in Canada. In fact, with the decisions coming just weeks after the Canadian government passed long-awaited copyright reform legislation, Canadian copyright law experienced a seismic shift that will take years to sort out.

Not surprisingly, the immediate coverage of the Courts decisions, which were quickly dubbed the copyright pentalogy, focused on the specific outcomes for the litigants, including wins for Bell and computer giant Apple (no fees for song previews on services such as iTunes),

Yet it took little time for the Canadian copyright community to begin to debate the larger implications of the decisions. Several issues quickly came to the fore. First, the cases provided an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users rights. The Court first raised the notion of balancing creator rights and user rights in 2004. Publisher and creator groups had urged the Court to retreat from its user rights approach, claiming it was merely a metaphor, yet the Court used these cases to re-emphasize the importance of users rights. The user rights analysis affects virtually all copyright cases,forcing all courts to ensure that there is a fair balance between the interests of creators and users. Moreover, the users rights framework has attracted growing attention worldwide, as Canadian copyright law is increasingly cited as the paradigm example for emphasizing both creator and user rights.

Second, the Court endorsed a technology-neutral approach to copyright law. For example, in striking down the demand for payment for music included in downloaded video games, it noted that there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet.

In doing so, the Court effectively embedded a technology-neutral principle into the law that will extend far beyond these particular cases, as future litigants will undoubtedly argue that existing exceptions can be applied to new uses of copyright works to ensure technological neutrality.