The Honourable Mr. is a tough act to follow, especially when recounting his own majority decision. At the recent , the former Supreme Court justice stood firmly by his decision in the case during his keynote address. The panelists during the event had more mixed feelings about [SODRAC].
The second panel of the day, titled “Reproduction Rights”, featured a particularly lively discussion of the implications of the decision for reproduction in the digital era. The panel, chaired by Professor , includedparticipants from a range of interested groups: (VP of Legal and Business Affairs at CMRRA), Professor (University of Ottawa), Intellectual Property lawyer (eLaw LLP), and Professor (Queen's University).
Professor Katz organized the discussion by providing a brief introduction, asking the panelists for their interpretations of the background to the decision, and then moving on to a more in-depth conversation about the matter of reproduction rights.
Following this, the panelists were asked to provide some background to the decision. Hayes noted his belief that the decision was a “good compromise”. He then spoke about the judicial history of the case, particularly's decision to separate their synchronization licensing scheme to garner additional payments, which was noted by in dissent.Syrtash thenprovided the licensing-side perspective of the issue. She agreed withthe majority decision that there is no statutory basis for reading down the meaning of reproduction in the [the "Act"].
Professor Amani took a more contrarian view. She was particularly concerned about the implication for the technological neutrality principle. According to Professor Amani, the decision by the majority is likely to contribute to a greater degree of uncertainty about how the court will apply the principle in future. Moreover, she pointed out that there exists no statutory basis for using the principle in the context of valuation – meaning that none of the Copyright legislation tells us to - or how to - apply technological neutrality when determining the value of a given copy for the purpose of charging tariffs. Yet, based on this case, it appears that technological neutrality now applies to both the interpretation and the application of the Copyright Act. In that light, she also argues that the holding that a multiplication is a copy is overbroad and overly inclusive, especially in the context of ephemeral copies.
Professor de Beer, who acted for as an intervener in SODRAC, argued that there is no “ordinary meaning” to section 3(1) of the Act (pointing out, for instance, that “mechanical” is an antiquated term) and there is more ambiguity in the Act than the majority considered. He also argued that SODRACis lessa shift in Copyright jurisprudence thanan outlier case. He stated that it is a disruptive case and may have the effect of complicating valuationsin tariff hearings and proceedings before the . In response, Syrtash was adamant that the decision is not an outlier, particularly given the consistency with which the same justices have been in the majority in related copyright cases.
The panelists then debated the decision's potential implications for reproduction rights. Hayes raisedsome “real world” implications.He noted that in practice it would be very difficult to deal with situations where certain copies have value while others do not. He discussed how it is a positive that collectives who are collecting tariffs will have to demonstrate how the additional copies made in the processes of a new technology add value for the user. In essence, those seeking additional tariffs will have to show that the user gained efficiencies and thereby value by making additional copies (necessitated by digital technologies, for example).
At this point, Professor Katz wondered aloud if the SODRACholding is limited to broadcasters’ reproductions. This spurred a debate around whether every copy is in fact a copy. Syrtash argued that, with exceptions and within context, “a copy is a copy is a copy” and the value of a copy is never zero. Professor de Beer then worried about the implications of this view. He arguedthat viewis too simplistic and notedthat the majority confined its remarks to the broadcast context. Hayes saidthat it is important to realize that the ruling applies to both the Copyright Board and to the courts. As a result, both bodies will have to consider it when valuing a given copy in a given case. Hayes pointed out that as a result of this decision, courts will not be able to value a copy, even an ephemeral one, at no value – a court will have to give a copy at least a minimum value. This is different than for the Board, which can value a tariff at zero.
The final portion of the discussion concernedthe issue of reproductionvaluationsin the digital era. Amani criticizedthe view that all copies havevalue(not everything worth copying is worth protecting). Syrtash, on the other hand, emphasizedthat the SupremeCourt saidthese copies matter and,accordingly,we cannot ignore anypotentialvalue to the user inincreased efficiency. Hayes counteredthat increased efficiency is not necessarily of great value if it ismerely the industry standard(i.e. switching to digital technology).
The energeticdebate could have gone on at length absent the imposed time limits, but wrapped up here with a few audience questions. Overall, what became clear throughout this and other panels during the symposium was that the implications of CBC v. SODRAC remain somewhat unclear both in practice and in academia. It is easy to see why the Supreme Court’s decision was controversial, with the questions put to this panel being only a sample of the important debates to be unpacked.
Sebastian Beck-Watt is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School