On the heels of heard before the Supreme Court of Canada (SCC) in ,the hosteda fascinating event centered onthe principle of technological neutrality from , and how it might be interpreted by the SCC whenthe case is decided.
The event, held at theRosewater Supper Club, brought together academics, intellectual property lawyers, and industry professionals for dinner and discourse.IP Osgoode's own moderated twospeakers: (partner of Borden Ladner Gervais LLP) and Richard Pfohl (General Counsel, , ).The frank discussion comprehensively explored the major themes and driving factors of the background cases, along withthe merits of the arguments of every party and intervenor in CBC. Tacklingthe vagueness of the principle of technological neutrality — as it was describedseveral times throughout the evening, a "ghost" of the SCC'sown making — was a recurring motif.
Professor D'Agostino
Professor D'Agostino's opening remarks laid outthe background of technological neutrality (humourously confessingit hasbecome a favouredsubject forherlaw school exam questions). She identifiedthe definition ofthe principle as set out by the SCC in ESA:"different forms of media should be treated the same for copyright purposes, regardless of their level of technological sophistication." She succinctly outlined themajorcritical theme about the principle whichwould punctuatethe rest of the evening: there is significant disagreement about whatthe principle means and how it should apply.
Professor D'Agostino emphasizedto the room thatthe principle was not new, havingexistedin other jurisdictions since 2001, including the US in.There, it was knownas the principle of media neutrality. (ղԾwas referred to and followed by the SCC in.)
The introductionconcluded by accentuatingthe principle's ambiguityperceivedby theFederal Court of Appeal in their decision: "...ESA, while restating the principle of technological neutrality in copyright law, provides no guidance as to how a court should apply that principle when faced with a copyright problem in which technological change is a material fact." Professor D'Agostino highlighted this flaw by citing Justice Rothstein's dissent inESA, where he suggested that "a principle should not override statutory rights in the Copyright Act."
Christina Pallotta
With the principledescribed and defined, Pallotta launched into a detailedoverview of the background cases that led to its inception. Shebeganwith (a 1990 SCC decision case about incidental copies for a prerecording in a televised broadcast of a song) which affirmedacrucialdistinction between performances and recordings.Bishop was quoted inESA and faced a similar quandary asCBC: what is to be done when "the introduction of new technology present[s] a situation not contemplated by the drafters of the original Canadian Copyright Act"? The Court in DZdistinguished between recording and performing, but they alsounderlined theimportance ofbalancing needs of technology withcreators' rights.
Pallotta then outlined the driving factors behind the majority and dissenting opinions inESA. She notedthat the majority sought to balance the public interest and creator rights (as inBishop, and with more backing from)using predominantlyeconomic reasoningto tip the scales. Shereinforced this methodology by referencing the majority's statement that "[t]he Internet is simply a technological taxi that delivers a durable copy of the same work to the end user."
Pallotta characterized the dissent as takinga divergentapproach to the issue, with Parliamentaryintent supersedingeconomic reasoning. She first highlighted Rothstein J's dismissal of the majority's cab metaphor: "taxis need not give free rides." Rothstein J acknowledged the appeal of technologically neutral copyright law. However, Pallotta neatly summarized how hisreluctance to employ technological neutralityfollows a simple three-step argument: [1] copyrightis a creature of statute; [2] it is comprised of a bundle of independent statutory rights; and [3] courts must respect the language chosen by Parliament – not override it. Pallotta's unbiased juxtaposition of majority and dissent in ESAmade a strong case in favour ofapplying Rothstein J's opinion.
Richard Pfohl
From there, Pfohl took over by leading the room through a history of CBCv SODRAC.Hestarted by outlining the Board's, and followed with a conciseretelling of the FCAunder appeal (where theyadmitted they did not know what to do with the principle in the first place due to the lack of guidance in ESA –Pfohl called this a big "red flag"). Hefinished bydissecting every majorargument of the appellant, respondent, and nearly every intervenor in CBC(, , ;omitted were arguments from the).
After an exhaustive listof CBC's objections toSODRAC's incidental copy licencing (including:“double-dipping”,“royalty stacking”,"triple-paying",“gratuitous cost” and “chilling effect”), Pfohl explained how CBC wantedthe principleto be applied, synthesizing from their : “broadcast-incidental copies do not engage the reproduction right”, the principle "creates implied license in SODRAC’s synch license", and“a technologically-neutral licence would attribute only nominal value to broadcast-incidental copies.”
SODRAC's to CBC's argumentsresembled Rothstein J's dissent inESA. Pfohl notedhowSODRAC posited that there is in fact no layering or double-dipping (the acts in question in this case are not simultaneous, unlike inESA,where a video game waseither downloaded or bought in person, but not both) and the court should notupset Parliament’s balance: “neither the Board nor the Courts can 'balance' away a right that is provided by statute.”
As Pfohl moved throughthe intervenors, it was clear they provided the Court with unique and compelling arguments. CMRRA on the importance of the fundamental divisibility of copyright (owners are entitled to divide and subdivide their exclusive rights) anda consistent application of the which has always protected broadcast-incidentalcopies. Music Canada(a promoting this interests of numerouscompanies engaged in all aspects of the recordingindustry, and which Pfohl represents ) to reject Functional Equivalence as being inconsistent with the language, structure, and history of the Act.
CIPPIC's addressed a peripheral yetpressing contemporary issue at stake inCBC: what do we do with the practical reality that ephemeral copies are ubiquitous in digital technology (you likelyjust made an ephemeral copyof my blog post in your web cache – I'll take cash or cheque)?CIPPIC suggests that“fleeting, transient, impermanent” copies should not be protected, and those copies that are protected must be “durable”.
Regardless of how theSCCappliesstatutory language to the facts and context of CBC's ephemeral copies, the thresholdissue raised by CIPPICappears more thanmerelytrivial. The Court would be wise to address this concern irrespective of the ultimate holding of the case.
Conclusion
A brief round of comments followed, enthusiastically kicked off by counsel for CMRRA, Casey Chisick, who provided an astutesummation of the principle of technological neutrality. Chisickanalogized the criticism of the SCC majority'sESAprinciple as "wrestling with a ghost/monster of their own making, which creates an unpredictable situation."Professor D'Agostino expanded onthis comment in her closing remarks, saying that this case has the opportunity to "play ghostbuster" as dissents can often become majorities.
Perhaps Rothstein J's dissent in ESA will provide a more consistent methodology for the Court to apply the Copyright Act, and a catalyst for Parliament to recognize the need to "future-proof" their legislation so technology does notimpede on creators' rights.
(The slides for the event maybe accessed .)
Jordan Fine is the IPilogue Content/Publication Editorand a JD Candidate at Osgoode Hall Law School.