Gilles M. Daigle

Appeal decision of the Supreme Court of Canada in 2013 SCC 73, addressing the legal issues presented and disposing of the proceeding on the terms stated in the reasons and judgment.

Appeal decision of the Supreme Court of Canada in 2013 SCC 73, addressing the legal issues presented and disposing of the proceeding on the terms stated in the reasons and judgment.

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.

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.

In a copyright tariff appeal concerning online music services, the Court addressed whether on-demand transmissions over the Internet constitute communication to the public by telecommunication under the Copyright Act.

The Court held that individual user-initiated streaming transmissions are not private in character when viewed as repeated transmissions to members of the public, and therefore remain within the communication right.

In light of the companion ruling on downloads, the download issue was moot and the appeal succeeded only to that extent.

The Court further held that correctness applied to the legal question under the statutory scheme, while a concurrence preferred reasonableness deference to the specialized tribunal.

On a motion in related leave applications, the moving parties sought an order requiring multiple opposing parties to post $3,250,000 as security for amounts payable if appeals were unsuccessful.

The Court held that security under s. 60(1)(b) of the Supreme Court Act has traditionally been symbolic and that the substantial security requested is ordinarily addressed in stay proceedings under ss. 65 or 65.1 or equivalent provincial provisions.

The Court found that existing stay conditions imposed by the court below continued to govern and that the motion effectively attempted to review that decision.

The Court also emphasized access-to-court considerations in the leave framework.

The motion was dismissed without costs.

The respondent collective society sought to impose copyright liability on Internet Service Providers (ISPs) for music downloaded in Canada from foreign countries.

The Supreme Court of Canada held that ISPs acting merely as conduits for information communicated by others are protected from liability under s. 2.4(1)(b) of the Copyright Act.

The Court also ruled that the creation of temporary 'cache' copies for technical reasons of economy and efficiency falls within this protection.

Furthermore, the Court determined that the Copyright Act applies to international Internet transmissions that have a real and substantial connection to Canada, rejecting the view that a communication only occurs in Canada if it originates from a server located within the country.