Casey Mark Chisick

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.

The defendants moved under s. 106 of the Courts of Justice Act to stay the copyright portion of an action until the foreign copyright owners were added as parties or consented to be bound by the court’s decision.

The motion turned on whether, under s. 41.23(2)(c) of the Copyright Act, the interests of justice required the copyright owners to be parties where the plaintiffs were licensees and contractual representatives of those owners.

The court held that the plaintiffs had authority, and in one case a contractual obligation, to enforce the copyright owners’ rights and that the owners were aware of the litigation but chose not to participate.

The court also noted the defendants’ significant delay in bringing the motion and the advanced stage of the proceedings.

It concluded that the interests of justice did not require the copyright owners to be added as parties and dismissed the motion.

The appeal concerned whether online music previews streamed before purchase are fair dealing for the purpose of research under the Copyright Act.

The Court held that research must be interpreted broadly and assessed from the user perspective, not only from the service provider perspective.

Applying the CCH framework, the Court found the previews fair in purpose, character, amount, alternatives, nature of the work, and market effect.

Because the previews were short, lower quality, temporary, and supported consumer selection without substituting for purchases, no additional royalties were payable for them.