Copyright fees on music, video, struck down by top court
Published Thursday, July 12, 2012 6:20AM EDT
Last Updated Thursday, July 12, 2012 6:52PM EDT
The Supreme Court of Canada has decided that Internet providers do not have to pay copyright fees when their consumers download or preview music, and that teachers don't have to pay fees when they photocopy copyrighted materials for their students.
Canada’s top court looked at five different cases that touched on tariffs set by the Copyright Board.
The court decided last year to take on all five cases at once, with the view that each of the cases centred on the same principles. On Thursday, it decided to respond to each appeal separately.
In one of the rulings, the court decided that there should be no fees levied against Internet service providers when their consumers download music.
In that case, some of Canada’s biggest ISPs argued that the wording of the Copyright Act was unclear on what constituted a telecommunication to the “public.”
The court ruled that the downloading of an individual file is not a “public” transmission. But it said that when music is streamed online, it is a “public” transmission and therefore fees can be levied.
“A stream of a musical work from the Internet is not a private transaction outside the scope of the right to communicate to the public,” the court said in its decision.
In another case, the court ruled that Internet providers should also not have to pay fees when music downloaders preview songs.
The Copyright Board decided in 2007 that there was nothing wrong with such previews because they were essentially “research.”
SOCAN, the Society of Composers, Authors and Music Publishers of Canada appealed that decision to the Supreme Court.
But the top court agreed that previews did not infringe copyright laws.
“The purpose of ‘research’ should be analyzed from the perspective of the consumer as the ultimate user, not the online service provider. The Board properly considered the previews from the perspective of the consumer’s purpose, namely, conducting research to identify which music to purchase,” the court said.
Michael Geist, a law professor at the University of Ottawa, told CTV News Channel that the ruling does not hurt musicians, and in fact “actually helps people buy music.”
“People listen to those clips in order to decide whether or not to purchase it. And so by opening the door to using clips…that helps people to decide whether or not they want to buy the music,” he said.
In another key case, the court upheld the view of education ministers and school boards that photocopying material for students does not infringe the Copyright Act.
The educators had argued that the practice should be allowed because they fall well within the Copyright Act’s so-called “fair dealing” exemptions.
The court agreed and said it was important to consider the intentions of teachers when assessing whether photocopying works for students constituted “fair dealing.”
“There is no separate purpose on the part of the teachers in this case. They have no ulterior or commercial motive when providing copies to students,” the court said in its ruling. “They are there to facilitate the students’ research and private study and to enable the students to have the material they need for the purpose of studying.”
Geist suggested the Court’s decision was fair because “when you’re engaged in educational activities whether as a student or as a teacher, fair dealing ought to apply, and so for a certain amount of copies… that’s fair dealing and it doesn’t require compensation.”
The decision is likely to have a major impact on schools, colleges and universities across the country, which have long paid millions of dollars annually for the right to make copies.
In another case, the judges found that movie theatres shouldn't be charged for the music that's part of a soundtrack.
The court ruled that a “soundtrack” that accompanies a movie is not the same as the Copyright Board’s definition of a “sound recording” because the soundtrack is meant to be part of the movie and includes pre‑existing sound recordings.
And finally, the court ruled that performance royalties do not need to be collected for music used in downloaded video games.
Telecom provider Bell on Thursday issued a statement on the rulings, saying: “We’re pleased the Court found royalties are not payable for soundtracks and previews. The Court’s decision regarding downloads and streaming is very complex and will take some time (to) study.”