Barry B. Sookman

The appellants challenged the Federal Court of Appeal's decision setting aside the Copyright Board of Canada's tariff determination, which had held that s. 2.4(1.1) of the Copyright Act created a separate compensable 'making available' right triggering royalties both when works are made available online and again when downloaded or streamed.

The majority held that the Board's interpretation violated the principle of technological neutrality and was inconsistent with the text, structure, and purpose of the Act; correctness was the applicable standard of review as concurrent first instance jurisdiction between courts and the Board constitutes a sixth category of correctness review.

Section 2.4(1.1) was interpreted as clarifying only that s. 3(1)(f) applies to on-demand streams and that a work is performed as soon as it is made available for on-demand streaming, with Canada's obligations under art. 8 of the WIPO Copyright Treaty satisfied through a combination of existing performance, reproduction, and authorization rights.

The concurring minority would have applied a reasonableness standard but agreed the Board's decision was unreasonable for disregarding binding precedent and the principle of technological neutrality.

Appeal dismissed.

A land surveying company brought a class action on behalf of Ontario land surveyors whose plans of survey had been digitized, stored, and copied by the province's electronic land registry service provider without payment of royalties.

The appellant argued that Crown copyright under s. 12 of the Copyright Act did not vest in the registered and deposited plans.

The majority held that the comprehensive provincial land registration regime gave the Crown complete control over the publication process, satisfying the requirements of s. 12.

A concurring minority agreed on the outcome but adopted a different interpretive framework, requiring both that the work be published 'by or under the direction or control' of the Crown and that the work qualify as a 'government work' serving a public purpose.

The appeal was dismissed without costs.

This is a costs endorsement following a successful motion by the defendants to strike out the plaintiffs' statement of claim, with leave to amend.

The defendants sought costs on a substantial indemnity scale, arguing the claims were baseless and important to their reputations.

The court denied substantial indemnity costs, finding no reprehensible conduct by the plaintiffs.

Instead, the court awarded costs on a partial indemnity scale to both groups of defendants, fixing specific amounts for fees and disbursements, emphasizing that costs are not a mechanical exercise and must be fair and reasonable for the unsuccessful party.

The plaintiff, Keatley Surveying Ltd., brought a class action against Teranet Inc., alleging copyright infringement for scanning, copying, and making available online plans of survey registered in Ontario's electronic land registry system.

Both parties moved for summary judgment on common issues, primarily concerning whether copyright in the plans belonged to the Province of Ontario under s. 12 of the Copyright Act upon registration or deposit.

The court held that while copyright subsisted in the plans, it belonged to the Province of Ontario pursuant to s. 12 of the Copyright Act, as a result of their registration or deposit in the land registry office, which transferred ownership of the property, including copyright, to the Crown.

Consequently, Teranet, acting under license from the province, did not infringe copyright.

The defendant's motion for summary judgment was granted, and the class action was dismissed.

The plaintiff surveying firm sought certification of a proposed class action alleging that the operator of Ontario’s electronic land registry system infringed surveyors’ copyright in registered plans of survey by scanning, storing, and selling digital copies through online portals.

The motion was brought under s. 5 of the Class Proceedings Act, 1992.

The court held that although a cause of action for copyright infringement was adequately pleaded (with the exception of allegations based on “translation” into digital formats), the plaintiff failed to satisfy the remaining certification criteria.

The proposed class definition was merits‑based and there was no evidence that two or more persons wished to pursue the claim.

The court also found that the proposed common issues were largely individualized, particularly regarding ownership of copyright and consent, and that a class proceeding would not be the preferable procedure.

The appeal concerned whether downloading a video game containing musical works over the Internet engages the communication right under s. 3(1)(f) of the Copyright Act in addition to reproduction rights.

A majority held that applying a separate communication tariff to permanent downloads would offend technological neutrality because downloading a durable copy is functionally equivalent to purchasing a copy in physical form.

The majority interpreted the communication right as historically tied to performance-based activity and set aside the tariff certification as applied to downloads.

The dissent would have treated communication and reproduction as distinct independent rights both engaged by Internet downloads.