Feature

Canada’s New Copyright The Supreme Court Redefines Fair Use and Technological Neutrality

Marek Nitoslawski And Michael J. Shortt

©2013. Published in Landslide, Vol. 5, No. 5, May/June 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

On July 12, 2012, the Supreme Court of Canada released five decisions that address central copyright topics such as fair dealing, the collective administration of copyright, and digital copyright transactions. These decisions have come to be known as the “Copyright Pentalogy” or “Pentalogy.”1 While these decisions clarify some areas of the law, they also raise many new questions. Either way, the Pentalogy has broad implications for many copyright owners and users that do business in Canada, particularly those who operate over the Internet or are subject to tariffs under Canada’s system of collective management of copyright. U.S. lawyers should pay particular attention to these decisions, as several expressly declined to follow American authorities and instead adopted a novel Canadian position.

The body of this article is divided into three sections, each dealing with one of the themes that emerged from the Copyright Pentalogy. The first theme is the ascendancy of fair dealing, Canada’s equivalent to the American concept of “fair use.” In the Copyright Pentalogy, the Supreme Court of Canada clarified and reinforced the fair dealing exception to copyright infringement. The second theme is technological neutrality, which the Supreme Court has adopted as a rule of interpreting the Canadian Copyright Act. This will have an important impact on the way that digital copyright issues and Internet-related tariffs are determined in Canada. The third theme is interpretation of the interplay between general and enumerated rights found in the Canadian definition of “copyright,” an issue that narrowly divided the Supreme Court in ESA v. SOCAN, but which other Pentalogy cases adopted.

Finally, while the Supreme Court of Canada’s rulings are important in their own right, they should be read in light of the recent amendments to the Canadian Copyright Act, which came into force after the Pentalogy decisions were rendered.2 These amendments have already been covered by a previous Landslide® article,3 so they are addressed here only where they are directly related to the cases under discussion.

The Triumph of Fair Dealing

Fair dealing in Canada is parallel to the American concept of fair use and is a defense to liability for what would otherwise be acts of copyright infringement. The Supreme Court has repeatedly stated that the fair dealing regime should not be seen as a mere collection of loopholes, but rather as an integral part of the legislative balance between the rights of copyright creators and users.4 The onus of establishing fair dealing rests on the defendant, who must satisfy the court that the dealing is: (1) for a protected purpose, and (2) fair.5

Step One: Protected Purposes

The current list of protected purposes for fair dealing includes: research, private study, criticism, review, and news reporting. The 2012 amendments added education, parody, and satire. Crucially, the list of protected purposes in Canadian copyright law is closed. In contrast to the American approach, there is no open-ended category of fair dealing, nor is there a possibility of judicially recognizing new categories. However, the restrictive nature of the closed list is offset by the Supreme Court’s repeated declaration that each of the existing purposes must be given a “large and liberal” interpretation.6

The Pentalogy confirms this approach. For example, in SOCAN v. Bell, the Supreme Court held that 30-second Internet previews of songs were being used for “research” by consumers because the previews allowed consumers to ensure that they purchased the correct song. In its judgment, the Supreme Court rejected several arguments attempting to restrict the definition of “research” under the Copyright Act, including one proposal that would have required research to be aimed at creating new works. The Supreme Court went on to state that “mandating a generous interpretation for the fair dealing purposes . . . [creates] a relatively low threshold for the first step [of the fair dealing test] so that the analytical heavy-hitting is done in determining whether the dealing was fair.”7 It also applied this low threshold in Alberta, where the court found that photocopies of textbooks made by teachers for their students were used for “research or private study.” Consistent with the “large and liberal” approach, the majority noted that “private study” could take place in public and among groups of students.8 This liberal interpretation of “private study” will now be subsumed by the 2012 Copyright Act amendments, which add “education” to the list of protected purposes. However, the expansive interpretative approach to the fair dealing purposes will endure, and the longer list of protected purposes will likely receive an equally generous interpretation.

The Pentalogy also determined whose purpose should be used during the first step of the fair dealing analysis. The Supreme Court’s answer was that where a commercial intermediary is accused of copyright infringement, the intermediary may invoke the purposes of its customers in order to raise a fair dealing defense. In SOCAN v. Bell, for example, the research was carried out by consumers, but the alleged infringers were online music services that provided the song previews for commercial reasons and that were not themselves engaged in research. The Supreme Court decided that because fair dealing is a user’s right, it is the user’s perspective that must be considered.9 Thus, the online music services could invoke the research conducted by their customers to satisfy the first step of the fair dealing test. Their ulterior commercial motive was relevant, however, in the fairness analysis during the second step.10 This approach was taken up again in Alberta, where the court held that teachers making photocopies of textbooks were facilitating the research and private study of their students, and could thus rely on their students’ use of the materials to justify their own copying.11

Two main lessons emerge from the Copyright Pentalogy’s treatment of fair dealing. First, the allowable purposes for fair dealing will be interpreted liberally. Second, the purpose of fair dealing is to be assessed from the consumer’s or user’s point of view, allowing copyright intermediaries, including commercial intermediaries, to satisfy the first step of the fair dealing test. That said, there is no guarantee that intermediaries’ use will be found to be “fair.”

Step Two: The Dealing Is Fair

In the second step, courts must determine if the dealing is fair. Fairness is a question of fact and first impression.12 Yet, however factual this determination may be, Alberta makes clear that courts must follow the six-factor test set out in 2004 by the Supreme Court in CCH.13 These factors resemble, and were partially inspired by, those of 17 U.S.C. § 107.14

 

Purpose of the Dealing

This factor takes into account the “real purpose or motive”15 behind the dealing. It includes both users’ purposes and the copier’s ulterior motivation; indeed, the copier may have a purpose different from that of the user (assuming the copier and the ultimate user are not the same individual).16 Dealing for a commercial purpose is less fair than charitable or noncommercial dealing,17 but even commercial dealing can be fair, particularly “if there are ‘reasonable safeguards’ in place to ensure that the works are actually being used for research [or another protected purpose].”18

 

Character of the Dealing

This is a very broad factor covering “how the works [are] dealt with.”19 In applying this factor, courts have analyzed everything from the aggregate amount of copyright infringement at issue,20 whether copies are destroyed after use,21 industry custom and practice,22 and whether the copies are used by one person for a specific purpose or widely distributed to many people.23 Canadian courts have declined to consider U.S.-style “transformative use” or the way in which the copyrighted work is acquired as part of this factor.24

 

Amount of the Dealing

This factor considers the proportion of the work that is reproduced by the dealing, both quantitatively and qualitatively.25 It does not examine the aggregate amount of copying, but rather analyzes each dealing on an individual level.26 Thus, in SOCAN v. Bell, the relevant “amount” was not the total number of previews accessed, but rather the ratio of the preview’s length (on average 30 seconds) to the length of the song from which it was drawn (on average four minutes), an amount the court qualified as “modest.”27 The fairness of any given amount may also depend on the purpose—research may require reproducing a work in its entirety, but criticism would rarely justify a total reproduction.28

 

Existence of Alternatives to the Dealing

This factor considers whether copyright infringement could have been avoided, and in particular whether the dealing was “reasonably necessary” to achieve the purpose of the dealing.29 The Pentalogy cases recognized the converse as well—any alleged alternative to the dealing must be a “realistic” one. Thus, in Alberta, the Supreme Court rejected the idea that buying textbooks for every student was a realistic alternative to photocopying short excerpts from those textbooks, finding the expense of buying multiple copies of a textbook merely to use a short passage unreasonable for schools and school boards.30 In SOCAN v. Bell, the Supreme Court went further, deprecating SOCAN’s suggestion that previews could be replaced by “returns” of downloaded files, stating that the latter was an “expensive, technologically complicated, and market-inhibiting alternative.”31

 

Nature of the Work

This factor “examines whether the work is one which should be widely disseminated.”32 Dissemination of original works is, of course, a fundamental purpose of copyright law; hence, if a work is one that should be widely distributed, dealings with that work are more likely to be fair. To date, every work considered by Canadian courts in fair dealing cases has been deemed “a work that should be widely disseminated.” Everything from reported legal cases,33 to music previews,34 to newspaper articles,35 to real estate listings36 has been found to deserve wide dissemination. So it remains unclear what kind of work would not deserve wide dissemination. The only comment on that question by the Supreme Court is an obiter statement that confidential works embodying trade secrets do not deserve wide dissemination.37 One can speculate that obscene works or hate propaganda would possibly not qualify as deserving wide distribution either.

 

Effect of the Dealing on the Work

The final factor considers the extent to which the dealing competes with or otherwise negatively affects the work.38 Such competition or negative impact will, of course, tend to make the dealing less fair. The Supreme Court has cautioned that this factor is not the most important, and should not be allowed to dominate the analysis.39

A Few Observations on Fairness

Although fairness is theoretically a fact-specific finding, a few general observations can be made about the Supreme Court’s evolving jurisprudence on the topic. First, the court’s renewed emphasis on fair dealing as a user’s right (first coherently articulated in the 2004 CCH decision) has largely overshadowed its statements that commercial motives tend to make a dealing unfair.40 In SOCAN v. Bell, the commercial motives of the online music service providers were barely mentioned during the fairness analysis, and were clearly outweighed in the court’s mind by the research purposes of users, which were characterized as the “predominant perspective” courts should adopt.41 This suggests that commercial copiers and intermediaries will not only be able to qualify for fair dealing under the first (protected purpose) step, but will in many cases be able to show their dealing was fair under the second (fairness) step. Second, SOCAN v. Bell and Alberta both tilt the fair dealing playing field in favor of the defendant. Both cases required alternatives to the dealing to be reasonable or realistic ones, both continued the trend of viewing almost all works as automatically deserving of dissemination, and both allowed the user’s purposes to dominate the “purpose of the dealing” factor. Thus, of the six factors, three seem to favor the defendant from the outset. Finally, the Supreme Court showed acute sensitivity to the need to apply fair dealing in a technologically-neutral manner, such as when it downplayed the importance of the total number of copies made in SOCAN v. Bell because this might “lead to disproportionate findings of unfairness [for digital works] when compared with non-digital works.”42

Technological Neutrality as a Pillar of the Copyright Act

The Supreme Court has previously referred to technological neutrality in copyright cases,43 but the Pentalogy significantly elevated the importance of this principle in interpreting the Copyright Act. In SOCAN v. Bell, a unanimous court held that “the goal of technological neutrality [is] to have the Copyright Act applied in a way that operates consistently, regardless of the form of media involved, or its technological sophistication.”44 By this and similar declarations in ESA v. SOCAN45 and Rogers v. SOCAN,46 the Supreme Court raised the principle of technological neutrality to a rule of statutory interpretation, and thus a pillar of the Copyright Act. The court recognized that this principle is not absolute, and can be overridden by express statutory language.47 Yet such express language is rare in the Copyright Act,48 and as a result, technological neutrality played a key role in several of the Supreme Court’s decisions.

In ESA v. SOCAN, the majority invoked technological neutrality to exclude the application of a Copyright Board performance tariff to digital sales of video games. According to the majority, the application of this tariff ran afoul of technological neutrality because it imposed “an additional layer of protections and fees based solely on the method of delivery of the work to the end user,” resulting in a “gratuitous cost for the use of more efficient, Internet-based technologies” by intermediaries.49

In Rogers v. SOCAN, the court again invoked technological neutrality, this time to confirm that offering on-demand music streaming constituted a telecommunication of that music to the public. In particular, the Supreme Court used technological neutrality to reject an attempt by Rogers and other music providers to limit the telecommunication right to “push” technologies (i.e., traditional TV/radio broadcasting, which distributes content at the broadcaster’s initiative) and thereby exclude “pull” technologies (i.e., on-demand services where users personally select the content that they will experience) from the definition of “telecommunication” in the Copyright Act. The Supreme Court found this distinction unhelpful because the telecommunication right was adopted by Parliament to be technologically neutral,50 and “[i]f the nature of the activity in both cases is the same, albeit accomplished through different material means, there is no justification for distinguishing between the two for copyright purposes.”51

Finally, in SOCAN v. Bell, the Supreme Court downplayed the importance of the amount of dealing and the organization of the dealing as factors in the “fairness” step of the fair dealing test. This was necessary, according to the court, in order to avoid a disproportionate number of findings of unfairness in Internet-based fair dealing cases, because the inherent scale of Internet copying (as compared to analog copying) would otherwise tend to make many such dealings unfair.52

The adoption of technological neutrality as a pillar of the Copyright Act may have at least one important and immediate impact: a reduction in the amounts payable under Copyright Board tariffs for Internet-related activities and perhaps other digital environments. In the past, the Copyright Board often sets tariffs on digital copyright activities higher than their analog equivalents.53 When there was no analog equivalent, as in the case of on-demand music streaming, the tariffs chosen by the Copyright Board were generally higher than most analog tariffs.54 In ESA v. SOCAN, the Copyright Board had imposed a tariff for digital sales of video games containing musical works, even though a physical sale of the video game would not have attracted a tariff.55 The board justified these decisions by arguing that cost savings and other efficiencies from Internet-based technologies should be passed along to artists.56 This approach seems to have been rejected by the Supreme Court, which could lead to a reexamination of many Internet tariffs and a consequent lowering of the amounts payable under them. In fact, the Copyright Board has already reissued its tariffs for online music services, decreasing the total amount payable under these tariffs by about 10 percent.57

Beyond tariffs, it is difficult to predict what effect the doctrine of technological neutrality will have on Canadian copyright law, because the nature of a technologically-neutral solution will likely depend on the facts of each case. This unpredictability is illustrated by the disparate results of two of the Copyright Pentalogy decisions: the Supreme Court first invoked technological neutrality to quash part of a Copyright Board tariff in ESA v. SOCAN, but later used technological neutrality to affirm a different element of the same tariff in Rogers v. SOCAN.58 Similarly, in SOCAN v. Bell, the Supreme Court downplayed the importance of aggregate copying in its assessment of fairness, finding that technological neutrality required treating Internet-based fair dealing differently.59 As a result, technological neutrality is a principle that must be borne in mind throughout copyright contract drafting or litigation strategizing, because its effects could be invoked by either party depending on practitioners’ ability to frame a particular solution as the “technologically neutral” one.

The Structure of the Canadian Copyright Bundle

One of the more subtle but far-reaching implications of the Pentalogy concerns the structure of the bundle of rights that make up Canadian copyright. These rights are enumerated in section 3(1) of the Copyright Act, which begins:

“[C]opyright,” in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof.60

After this opening paragraph, section 3(1) continues by listing a variety of specific rights, including the right to prepare translations (section 3(1)(a)), the right to communicate the work to the public by telecommunication (section 3(1)(f)), and a rental right for computer programs (section 3(1)(h)) and sound recordings (section 3(1)(i)). As one might guess based on the progression of these rights from translation to telecommunication, the enumerated rights at section 3(1)(a)–(j) were added sequentially over the course of the 20th century. Traditionally, each of these rights was understood as distinct and separate from the others, so copyright was seen as a bundle of many individual rights. In ESA v. SOCAN, the majority ruling departed from this traditional view of copyright by finding that all of the enumerated rights at section 3(1)(a)–(j) were merely illustrations of the three core rights of publication, reproduction, and public performance.61 As mere illustrations, the enumerated rights had no existence independent of the three core rights. Based on its new approach to the structure of copyright, the majority held that the telecommunication right was an illustration of the performance right. Hence downloads, earlier characterized as reproductions by the majority, could not be telecommunications because a telecommunication was characterized as an illustration of the performance right. The ruling in ESA v. SOCAN would be applied by all justices of the Supreme Court in Rogers v. SOCAN.62

There are a number of practical consequences that may flow from the Supreme Court’s interpretation of the interplay between the core and illustrative rights in the copyright bundle. First, based on ESA v. SOCAN, arguably only one collective society tariff can apply to any given activity because that activity must be either a reproduction or a performance, and thus will attract either a reproduction-based tariff or a performance-based tariff.63 This reasoning was recently implemented by the Copyright Board, which eliminated SOCAN tariffs for downloads in its reissued tariff for online music services.64 Thus, industries currently paying tariffs to more than one collective for a given activity may be able to avoid one of the two tariffs.

But the evolution of the Canadian copyright bundle also poses difficult questions of statutory interpretation that the Supreme Court did not address in ESA v. SOCAN. For example, while the majority observed that the rental right was an illustration of the reproduction right,65 the court provided no guidance on how to classify the other enumerated rights of section 3(1). Consider, for example, the right to adapt a literary or other work into a dramatic work (i.e., into a movie or play, or into a script for such a work). Is this a reproduction or a publication? Because the Supreme Court has previously defined reproduction as necessarily involving an increase in the number of copies of a work, an adaptation does not seem to be a reproduction;66 but it is equally unclear whether adaptations can be understood as publications, given that the “work” in question has already been published, albeit in a nondramatic form. Similarly, the distribution right introduced by the 2012 amendments to the Copyright Act, which is a right to control the first sale of a tangible embodiment of a work, does not seem to fit under any of reproduction, performance, or publication.67 The uncertain classification of the distribution right is particularly troubling because there is no transitional provision in the Copyright Modernization Act that creates a default allocation of the distribution right. This contrasts with previous amendments to the Copyright Act, which specified who held rights that were being added to the copyright bundle.68

In sum, it is very difficult to predict the long-term effects of the Supreme Court’s interpretation of the copyright bundle. In part this uncertainty arises because the structure of the copyright bundle was not placed squarely before the court for adjudication, and the majority was not faced with—and thus did not resolve—the many difficulties and ambiguities that inevitably arise from this interpretation. The Supreme Court’s decisions already appear to have influenced the Copyright Board, which felt bound by ESA v. SOCAN to set royalty rates for permanent downloads (i.e., reproductions) equal to those for time-limited downloads (which the board characterized as rentals).69 From the board’s reasons, it is not clear if it felt bound because the Supreme Court had characterized rentals as reproductions, or for other reasons, but such uncertainties may become a recurrent feature of Canadian copyright law until the Supreme Court once again addresses the structure of the copyright bundle.

Conclusion

In the five cases that make up Canada’s Copyright Pentalogy, the Supreme Court made a series of far-reaching changes to Canadian copyright law. This article has reviewed three of the most important themes that emerge from these cases, but the full extent of these rulings will not become apparent for many years. Attorneys advising clients on Canadian copyright issues or on copyright transactions involving Canadian firms would be advised to read all five decisions attentively. Particular attention should be paid to the possibility of commercial fair dealing, which the Supreme Court approved in Bell v. SOCAN. Counsel should also be aware of the importance of technological neutrality and the new interpretation of the copyright bundle. These latter two issues are challenging ones because the Supreme Court’s rulings arguably break new ground and thus present new ways of interpreting copyright law.

Endnotes

1. Entm’t Software Ass’n v. Soc’y of Composers, Authors & Music Publishers of Can. (ESA v. SOCAN), 2012 SCC 34 (Can.) (downloads); Rogers Commc’ns v. Soc’y of Composers, Authors & Music Publishers of Can. (Rogers v. SOCAN), 2012 SCC 35 (Can.) (streaming); Soc’y of Composers, Authors & Music Publishers of Can. v. Bell Canada (SOCAN v. Bell), 2012 SCC 36 (Can.) (music previews); Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (Can.) (photocopying); Re:Sound v. Motion Picture Theatre Ass’ns of Can., 2012 SCC 38 (Can.) (movie soundtracks).

2. Copyright Modernization Act, S.C. 2012, c. 20 (Can.) (effective Nov. 7, 2012).

3. Mark Edward Davis, Copyright Law in Canada: Similar, But Not the Same, 4:5 Landslide 48, 49 (May/June 2012).

4. CCH Canadian Ltd. v. Law Soc’y of Upper Can., 2004 SCC 13, paras. 48–49 (Can.).

5. SOCAN v. Bell, 2012 SCC 36, at paras. 13, 26.

6. CCH, 2004 SCC 13, at para. 51.

7. SOCAN v. Bell, 2012 SCC 36, at para. 27.

8. Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, paras. 25–27 (Can.).

9. SOCAN v. Bell, 2012 SCC 36, at paras. 28–30; see also Alberta, 2012 SCC 37, at paras. 22–23.

10. SOCAN v. Bell, 2012 SCC 36, at paras. 33–36; Alberta, 2012 SCC 37, at para. 22.

11. Alberta, 2012 SCC 37, at paras. 22–23.

12. CCH Canadian Ltd. v. Law Soc’y of Upper Can., 2004 SCC 13, para. 52 (Can.) (quoting Hubbard v. Vosper, [1972] 1 All E.R. 1023, 1027 (Eng.)).

13. Alberta, 2012 SCC 37, at paras. 12, 37. The Supreme Court held that the Copyright Board’s misapplication of the CCH factors made its decision unreasonable; thus, a failure to apply the factors at all would be even more unreasonable.

14. See, e.g., SOCAN v. Bell, 2012 SCC 36, at paras. 33–48; CCH, 2004 SCC 13, at paras. 53–60.

15. SOCAN v. Bell, 2012 SCC 36, at para. 33.

16. Contra id. at paras. 28, 33–34; Alberta, 2012 SCC 37, at para. 22.

17. CCH, 2004 SCC 13, at para. 54.

18. SOCAN v. Bell, 2012 SCC 36, at para. 36.

19. CCH, 2004 SCC 13, at para. 55.

20. Alberta, 2012 SCC 37, at para. 29.

21. CCH, 2004 SCC 13, at para. 55.

22. Id.

23. Id.; see also Warman v. Fournier, 2012 FC 803, para. 34 (Can.).

24. Century 21 Can. Ltd. P’ship v. Rogers Commc’ns Inc., 2011 BCSC 1196, para. 234 (Can. B.C.).

25. CCH, 2004 SCC 13, at para. 56.

26. Soc’y of Composers, Authors & Music Publishers of Can. v. Bell Canada (SOCAN v. Bell), 2012 SCC 36, paras. 39–42 (Can.); Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, paras. 29–30 (Can.).

27. SOCAN v. Bell, 2012 SCC 36, at paras. 39–42.

28. CCH, 2004 SCC 13, at para. 56; see also Zamacois v. Douville (1943), 3 Fox Pat. C. 44, at 70–72 (Can. Ex. C.).

29. CCH, 2004 SCC 13, at para. 57.

30. Alberta, 2012 SCC 37, at para. 32.

31. SOCAN v. Bell, 2012 SCC 36, at para. 46. It will be interesting to see how the court’s dismissive attitude toward technological protection measures (TPMs) influences its application of the TPM anticircumvention regime created by the 2012 Copyright Act amendments.

32. Id. at para. 47.

33. CCH, 2004 SCC 13, at para. 71.

34. SOCAN v. Bell, 2012 SCC 36, at para. 47.

35. Warman v. Fournier, 2012 FC 803, para. 33 (Can.).

36. Century 21 Can. Ltd. P’ship v. Rogers Commc’ns Inc., 2011 BCSC 1196, paras. 269–72 (Can. B.C.).

37. CCH, 2004 SCC 13, at para. 58.

38. SOCAN v. Bell, 2012 SCC 36, at para. 48; CCH, 2004 SCC 13, at para. 59.

39. CCH, 2004 SCC 13, at para. 59.

40. For example, the commercial motives of online music service providers were barely mentioned during the fairness analysis in SOCAN v. Bell; and in Alberta, the court rejected a line of cases from other commonwealth countries holding that publishers of course packs or study guides incorporating copyrighted materials could not invoke the research purposes of the students who purchased these materials to claim the protection of fair dealing.

41. SOCAN v. Bell, 2012 SCC 36, at paras. 33–34.

42. Id. at para. 43; see also id. at para. 46 (discussing download “returns”).

43. See, e.g., Robertson v. Thomson Corp., 2006 SCC 43, paras. 48–49.

44. SOCAN v. Bell, 2012 SCC 36, at para. 43.

45. Entm’t Software Ass’n v. Soc’y of Composers, Authors & Music Publishers of Can. (ESA v. SOCAN), 2012 SCC 34, paras. 2, 9 (Can.).

46. Rogers Commc’ns v. Soc’y of Composers, Authors & Music Publishers of Can. (Rogers v. SOCAN), 2012 SCC 35, paras. 29, 40 (Can.).

47. ESA v. SOCAN, 2012 SCC 34, at para. 9.

48. One of the few examples of a nonneutral application of the Copyright Act is its differential treatment of soundtracks accompanying cinematographic works—a treatment that does not extend to soundtracks accompanying other works (such as direct-to-air broadcasts). This provision was considered by the Supreme Court in the Copyright Pentalogy, but there was no discussion of this question. See Re:Sound v. Motion Picture Theatre Ass’ns of Can., 2012 SCC 38 (Can.).

49. ESA v. SOCAN, 2012 SCC 34, at para. 9.

50. Rogers v. SOCAN, 2012 SCC 35, at para. 37.

51. Id. at para. 29.

52. Soc’y of Composers, Authors & Music Publishers of Can. v. Bell Canada (SOCAN v. Bell), 2012 SCC 36, para. 43 (Can.).

53. For radio, compare Copyright Board of Canada, Statement of Royalties to Be Collected by SOCAN and NRCC in Respect of Commercial Radio (Tariff 1.A, 2003–2007), C. Gaz. I (Supp. Feb. 23, 2003) (setting SOCAN radio royalties at 3.2 percent on the first $1.25 million in gross revenues, and 4.4 percent thereafter), with Copyright Board of Canada, Statement of Royalties to Be Collected by SOCAN for the Communication to the Public by Telecommunication, in Canada, of Musical or Dramatico-Musical Works (Tariffs 22.B to 22.G, 1996–2006), C. Gaz. I (Supp. Oct. 25, 2008) (setting SOCAN royalties payable on radio stations’ gross Internet revenues at 4.2 percent from the first dollar). Unless an Internet radio station generated more than $6.25 million in revenue (an unlikely and atypical scenario), it paid a higher SOCAN tariff than an analog radio station with identical income.

54. See, e.g., Copyright Board of Canada, Statement of Royalties to Be Collected by SOCAN for the Communication to the Public by Telecommunication, in Canada, of Musical or Dramatico-Musical Works (Tariff 22.A, 1996–2006), C. Gaz. I (Supp. Nov. 24, 2007) (setting royalties at 6.8 percent of gross revenues, adjusted for the percentage of SOCAN content accessed).

55. Decision of the Copyright Board of Canada Certifying Tariff 22A (Internet—Online Music Services) for the Years 1996–2006, 61 C.P.R. (4th) 353 (Oct. 18, 2007), available at http://www.cb-cda.gc.ca/decisions/2007/20071018-m-e.pdf (addressing the tariff under appeal in ESA v. SOCAN and Rogers v. SOCAN).

56. Id. at paras. 147–48.

57. Fact Sheet: Online Music Services SOCAN Tariff 22.A (2007–2010) and CSI Tariff (2008–2010), Copyright Board of Canada (Oct 5, 2012), http://www.cb-cda.gc.ca/tariffs-tarifs/certified- homologues/2012/socan-al-factsheet.pdf. For the reissued decision, see Decision of the Copyright Board of Canada Certifying SOCAN Tariff 22.A (2007–2010) and CSI Tariff (2008–2010) (Oct. 5, 2012) [hereinafter Copyright Board Decision #57], available at http://www.cb-cda.gc.ca/decisions/2012/socan-csi-reasons.pdf.

58. Entm’t Software Ass’n v. Soc’y of Composers, Authors & Music Publishers of Can. (ESA v. SOCAN), 2012 SCC 34, para. 9 (Can.); Rogers Commc’ns v. Soc’y of Composers, Authors & Music Publishers of Can. (Rogers v. SOCAN), 2012 SCC 35, paras. 29, 34 (Can.).

59. Soc’y of Composers, Authors & Music Publishers of Can. v. Bell Canada (SOCAN v. Bell), 2012 SCC 36, para. 43 (Can.).

60. Copyright Act, R.S.C. 1985, c. C-42, s. 3(1) (Can.) (emphasis added).

61. ESA v. SOCAN, 2012 SCC 34, at para. 42.

62. One justice concurred on copyright matters, but dissented on an administrative law issue.

63. ESA v. SOCAN, 2012 SCC 34, at paras. 9, 40–41.

64. Copyright Board Decision #57, supra note 57.

65. ESA v. SOCAN, 2012 SCC 34, at para. 42.

66. Théberge v. Galerie d’Art du Petit Champlain Inc., 2002 SCC 34, paras. 42, 45 (Can.).

67. Copyright Modernization Act, S.C. 2012, c. 20, s. 4 (Can.) (to be codified as section 3(1)(j) of the consolidated Copyright Act).

68. See, e.g., An Act to Amend the Copyright Act, S.C. 1997, c. 24, s. 58.1 (Can.).

69. Copyright Board Decision #57, supra note 57, at paras. 92, 95–96.