This historic event reverberated in a number of domains.

These five judgments mark the final moments before a long anticipated major reform in Canada’s copyright law: on 12 July 2012, when the five judgments were released, the Copyright Modernization Act had been passed by Parliament but had not been declared in force.[6]

In addition to marking the end of one version of the Copyright Act, in the context of intellectual property development in Canada, the “pentalogy” instantly enormously multiplied the total jurisprudence from Canada’s highest court that bears on copyright. Indeed, between the time McLachlin J became Chief Justice of the Supreme Court in 2000 and the release of the pentalogy, there had only been five copyright judgments from the Court:[7] �ճ�é��������� v Galérie d’Art du Petit Champlain [�ճ�é���������],[8] CCH Canadian Ltd v Law Society of Upper Canada [CCH],[9] Society of Composers, Authors, and Music Publishers of Canada v Canadian Association of Internet Providers [SOCAN v CAIP],[10] Robertson v Thomson Corp [Robertson],[11] and Euro-Excellence Inc. v Kraft Canada Inc. [Toblerone].[12] Taken together, these ten cases represent a greater volume of interest from the Supreme Court in copyright than has been evinced at any time since it became Canada’s final appeal court.[13] For example, in Ian Bushnell’s history of the Federal Court, spanning 1875 to 1992, there is mention of only one intellectual property case being appealed to the Supreme Court,[14] a trademark case, Benson & Hedges v St. Regis Tobacco Corporation.[15] Others did reach the Supreme Court but did not merit discussion in Bushnell’s history: for example, in copyright, on appeal from the Exchequer Court (predecessor to the Federal Court), the Supreme Court decided Cuisenaire v South West Imports Ltd in 1969—but consideration of copyright by the Supreme Court under previous Chief Justices has definitely been infrequent.[16] One reason for this relative paucity of copyright cases in the Supreme Court may be the strong contribution to intellectual property jurisprudence between 1964 and 1980, which is universally acknowledged as being made by Jackett CJ of the Federal Court.[17]

But, beyond the context of copyright jurisprudence, the release of these five copyright decisions together was a landmark in the history of Supreme Court jurisprudence in general. This chapter will focus on the historic copyright “pentalogy” but, rather than considering these judgments primarily in light of Canadian copyright jurisprudence— or, indeed, in light of intellectual property jurisprudence more broadly—the discussion will focus on these five judgments in the context of Canada’s Supreme Court jurisprudence generally...

The post The Context of the Supreme Court’s Copyright Cases appeared first on IPOsgoode.

This chapter considers the shape Parliament has given to the UGC exception and examines its place within the scheme of the Copyright Act, particularly in light of recent Supreme Court of Canada jurisprudence. The chapter begins with a discussion of the definition of UGC, followed by an analysis of the statutory exception. It next considers the relationship between the UGC exception and the fair dealing exception. Although opponents ��might characterize both the UGC exception and expanded fair ��dealing as unjustifiable encroachments upon the rights of copyright ��owners, this chapter argues that these exceptions reflect the shifting ��realities of cultural production and dissemination.

1. Defining User-Generated Content

User-generated content, or UGC,[2] is a term that has been used to describe a fairly wide range of Internet-based activity from blogging to file-sharing.[3] Gervais, admitting the difficulty of defining a term that covers such a broad range of conduct, has characterized it as “content that is created in whole or in part using tools specific to the online environment and/or disseminated using such tools.”[4] Hilbert defines it not so much in terms of what it is, but in terms of who makes it, writing that UGC is “used to describe activities engaged in by those typically seen not as cultural producers but cultural consumers.”[5]

Although these characterizations emphasize different features of UGC, together they highlight the profound transformations wrought by the digital information context. On the one hand, digital technologies empower users of digital works to interact in new ways with copyright-protected content; at the same time, the proliferation of new and modified content from non-professional sources has undermined the traditional content intermediaries, creating a radically transformed context for the dissemination of information and cultural content.[6] It is precisely this new paradigm that underpins the recent Supreme Court of Canada copyright jurisprudence.[7]

The expansive definitions of UGC have led to further attempts to categorize UGC for the purposes of legal analysis. Trosow et al[8] offer a taxonomy for UGC that features three broad categories: creative content, small-scale tools (such as apps) and collaborative projects (such as wikis). In this taxonomy, the focus is on function, and it is certainly worth reflecting upon the broad range of purposes served by UGC. UGC may be innovative, creative or informative. Indeed, in fields of activity where UGC has had an impact on knowledge generation and dissemination, the focus of inquiry has been on the substantive issues around the quality and reliability of the new content, rather than on issues of copyright.[9] Copyright lawyers employ a different taxonomy. Gervais offers a taxonomy based on the nature of the content in relation to copyright principles. He would divide UGC into three broad categories[10]: content authored by users,[11] content derived by users[12] and content copied by users.[13] This taxonomy emphasizes the different ways in which individuals now engage with digital works and digital modes of dissemination. The focus on the characterization of the user’s activity, as opposed to, for example, the ��form of the work, is echoed as well in the Supreme Court of Canada’s ��emphasis in ��SOCAN v Bell Canada [ Bell ] on the importance of the perspective of “the ultimate users” and their purposes in relation to ��the works at issue.[14]

The UGC exception in Bill C-11 is oriented only toward the second category in Gervais’ taxonomy: content that is created by users and that incorporates, to a greater or lesser extent, copyright works by others. It is therefore this category of UGC that will be the focus of this chapter. Because this chapter is about intellectual property law, it is the copyright lawyers’ taxonomy that is adopted. Nevertheless, it is ��important to note that UGC in its many forms is already becoming ��accepted in different fields of activity as a source of information and ��creativity, and inquiries in these fields have moved ahead to issues of ��how best to use, integrate and derive benefit from these new modes of ��knowledge creation.

Featured here is the first part of a book chapter written by Teresa Scassa, Canada Research Chair in Information Law and Professor at the University of Ottawa. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

The post Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law appeared first on IPOsgoode.

Of the five cases, two do not seem particularly controversial. In the first case, Re:Sound v Motion Picture Theatre Association of Canada,[3] which involved the 1961 Rome Convention,[4] a unanimous Court agreed with the Copyright Board that sound recordings embedded in movie soundtracks were not (or were no longer) to be treated as sound recordings under the Copyright Act,[5] thus rejecting the application in Canada of an Australian precedent based on a similar fact pattern but on very different statutory language. Given the wording of section 2 of the Act, the outcome seems reasonable. While the Rome Convention might have led the Court to take a longer look at the appellants’ arguments that a pre-existing sound recording reproduced in a soundtrack is still a sound recording and/or that a new sound recording is created by ripping the soundtrack—based on the principle that statutes should be interpreted in accordance with treaties ratified or adhered to by Canada[6]—the statute seems rather unambiguous in defining a soundtrack as something other than a phonogram because it is not exclusively “aural”.[7] The idea that an existing sound recording ceases to exist under Canadian copyright law when (while) it is embedded in a soundtrack and re-emerges when ripped would deserve a longer comment, but the point is not one I wish to belabour here.

In the second case, Rogers v SOCAN,[8] the Court decided (unanimously on this point[9]) that a series of point-to-point on-demand transmissions of works constituted a form of communication to the public (covered by an exclusive right) even if each individual transmission was not, at least colloquially, public. The Court referred to the WIPO Copyright Treaty[10] and the making available right in that context. That case was, I believe, rightly decided if the normative basis for the definition of “public” that has applied to signals sent to groups of private homes, hotel rooms, etc. (which, together, constitute a “public”) is to be followed.

Two of the three other cases in the pentalogy were 5-4 splits. Not surprisingly, they are controversial. I return to those two cases below. I will also mention the fifth (and last case) of the pentalogy, namely SOCAN v Bell, later on. It is not particularly controversial but it needs to be contextualized. However, before embarking on our review of the cases, I wish to take the reader for a quick a tour of ancient China and Greece...

Featured here is the first part of a book chapter written by Daniel Gervais, Professor of Law and Director of the Intellectual Property Program at Vanderbilt University. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

The post The Internet Taxi: Collective Management of Copyright and the Making Available Right, after the Pentalogy appeared first on IPOsgoode.

In what is now dubbed the Supreme Court’s “copyright pentalogy”—five copyright judgments released concurrently by the Court in July 2012[1]—the unprecedented importance accorded by the Court to the principle of technological neutrality is clear; what remains unclear is precisely what “technological neutrality” means, why it matters, and whether or how it can (or should) ever be attained.

This chapter aims to critically assess the significance of the principle and its potential to guide the future development of copyright law and policy in Canada. In Part 2, I set out the various shades of meaning that can be attached to technological neutrality, first as a principle of sound regulation, and then as a principle of statutory interpretation by the courts. I review, in Part 3, the reasons delivered by the Justices in three of the five cases to examine the various and divergent ways in which the principle of technological neutrality was defined and rationalized by members of the Court. I proceed to explore the application of the principle and its role in resolving the legal issues before the Court, drawing connections between conceptualizations of the principle and its interpretive impact, and focusing on its capacity to support the extension and/or circumscription of owners’ and users’ rights.

In Part 4, I consider whether the role accorded to technological neutrality as a guiding principle is justifiable or appropriate in the context of Canadian copyright policy. Arguing that its justification is found in, and flows from, the concept of balance at the heart of the copyright system, I proceed to offer some thoughts on its potential significance in the future of Canadian copyright law and in light of the recent amendments to the Copyright Act.[2] Part 5 concludes that the new emphasis placed by the Court on technological neutrality as a guiding principle is an important and positive development for Canada’s copyright system. The caveat, however, is that the principle cannot perform this role effectively if conceived (or rhetorically invoked) as a limited principle of formal non-discrimination that merely justifies the extension of copyright’s reach. Rather, I argue, it must be conceived in a functional sense, shaping copyright norms to produce a substantively equivalent effect across technologies, with a view to preserving the copyright balance in the digital realm.

Featured here is the first part of a book chapter written by Carys Craig, Associate Professor at Osgoode Hall Law School. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

The post Technological Neutrality: (Pre)Serving the Purposes of Copyright Law appeared first on IPOsgoode.

I argue that while it is salutary to re-emphasize the existence of users’ rights as per CCH v Law Society of Upper Canada [CCH], and indeed that these rights are here to stay, it cannot be beneficial for the Court to reinterpret the facts, which is the job of courts and tribunals of first instance, or to make policy, which is the job of government; here, unfortunately, the Court indulged in both. In its reasoning, the Supreme Court of Canada showcases rigid reliance on CCH’s six-factor framework and elevates the framework to the level of law.[3] Ironically, in doing so, the Supreme Court of Canada is actually going against the spirit and the benefit that CCH created for copyright law in Canada and, more specifically, for fair dealing.

Fair Dealing and the Copyright Pentalogy

The Supreme Court of Canada released five copyright cases, commonly referred to as the copyright pentalogy, on the same day in July 2012, setting abuzz all circles in the legal community and beyond. Many fundamental copyright issues were raised: delineating the scope of various rights and the overlapping nature of rights in the Copyright Act, technological neutrality, questions of payment and, more broadly, appropriate standards of review, as each of these cases originated from the Federal Court of Appeal’s judicial review of the Copyright Board of Canada decisions. Among the five cases, two dealt squarely with the doctrine of fair dealing: within certain limits, what a user can do with a substantial part of a copyright work without permission of the owner.[4]

In Canada, the doctrine of fair dealing is statutorily entrenched in the Copyright Act. As a result of the recently enacted Copyright Modernization Act, there are now five allowable purposes for fair dealing: (1) research or private study (s. 29); (2) criticism or review (s. 29.1); (3) news reporting (s. 29.2); (4) parody or satire (s. 29); and (5) education (s. 29).[5] Fair dealing is a question of fact and a matter of first impression.[6] The onus is on the defendant to prove that the dealing (1) fits within one of the enumerated allowable purposes; (2) is “fair”; and (3) for “criticism or review” and “news reporting”, sufficient acknowledgement is given. In CCH, a unanimous Supreme Court of Canada ruled that fair dealing, alongside the other exceptions in the Copyright Act, “must not be interpreted restrictively”[7] and that more or less six factors may be used when assessing fairness.[8] In that case, the Law Society of Upper Canada did not infringe copyright, because its Great Library request-based reproduction services fell squarely within the allowances of the fair dealing doctrine. Lawyers carrying on the business of law for profit were held to be conducting noninfringing research. Research should be accorded a “large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”[9]

In SOCAN v Bell [Bell], Abella J for a unanimous court agreed with the Board that song previews provided by Internet service providers for consumers constituted fair dealing for the purposes of research and thus were not subject to a tariff. Consistent with the spirit of CCH, the term “research” should be given a “large and liberal interpretation”. For the Court, it would be far too restrictive to limit “research” to its ordinary meaning, as it can include “many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can be undertaken for no purpose except personal interest.”[10]

On the other hand, Alberta (Education) was a heavily contentious case, with a 5-4 split decision over the appropriate deference afforded to the Board and the interpretation of fair dealing. At issue was whether copies made at the teacher’s initiative in Kindergarten to Grade 12 classrooms and provided to students with instructions to read the material were made for the allowable purpose of research or private study.[11] While the matter was sent back to the Copyright Board for reconsideration, the Board later ruled that the copying at issue was fair dealing.[12] For Abella J’s majority, the Board misinterpreted the six fair dealing factors. For Rothstein J’s dissent, the six factors are not statutory enactments; fair dealing is a question of fact, and deference should be accorded to the Board. In both cases, the Court seized the opportunity to clarify the interpretive framework set out in CCH.[13]

In Bell, Abella J clarified that a generous, “low-threshold” interpretation should occur for the first part of the test, with respect to determining the allowable purposes, “so that the analytical heavyhitting is done in determining whether the dealing was fair.”[14] While the Court is quite liberal in the first part of the test—some would say too liberal[15]—it is ironically rigid in the fairness analysis.

What follows is a discussion of the Court’s enthusiasm to rehear facts when it does not agree with the outcome, in specific reference to (1) an emerging user perspective test the Court used for determining both the allowable purpose to warrant fair dealing and the first fairness factor (i.e. the purpose of the dealing), and (2) the Court’s general approach to determine fairness: by methodically examining each of the six fairness factors proposed in CCH. I will tackle the latter first, as I find this development the most troubling.

Featured here is the first part of a book chapter written by Giuseppina D’Agostino, Founder and Director of IP Osgoode, the Founder and Director of the IP Intensive Program, and an Associate Professor at Osgoode Hall Law School. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

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The post The Arithmetic of Fair Dealing at the Supreme Court of Canada appeared first on IPOsgoode.

The Copyright Pentalogy rocked the foundations of Canada’s media industries, and will have wide reaching repercussions for Canadian copyright law. The book, entitled “” is the first comprehensive scholarly analysis of the pentalogy. The text covers a range of topics, including the standard of review in the courts, the implications and evolution of fair dealing, technological neutrality, the scope of copyright and copyright collective management.

The book is edited by Prof. Michael Geist of the University of Ottawa and includes contributions from many of Canada’s leading copyright scholars, including IP Osgoode’s very own Prof. Giuseppina D’Agostino and Prof. Carys Craig. It is sure to be a must have resource for anyone interested in Canadian copyright law in the future.

Print copies are available from the and an open access PDF version is available as a .

The post New Book - The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law appeared first on IPOsgoode.