Regardless of updates to the country's Copyright Act, the courts will still have to manage
the lion's share of the copyright battles.
On Thursday morning, the Supreme Court of Canada handed down a ruling that further clarifies the role the Internet plays in the music business.
The court struck down the double dipping that music companies and copyright holders have engaged in since buying digital music downloads became popular.
When purchasing a song online, the retailer (such as iTunes) had to pay SOCAN (Society of Composers, Authors and Music Publishers of Canada) two separate royalty fees for both the copy of the song as well as for performance rights.
Online music services argued that the performance right fee was unfair since it doesn't also apply to music purchased in a bricks-and-mortar store.
Since 1996, Canada's Copyright Board has allowed music publishers to recoup those extra few cents on every song download because they had interpreted the movement of a digital file as a public transmission.
But yesterday the court said "a transmission of a single copy of work to a single individual is not a communication to the public within the meaning of [the Copyright Act]."
In the same ruling, the court upheld the second royalty tariff for music available as an online stream. The same rules and fees apply to copyrighted music playing on a service like CBC Music as the music heard over a shopping mall sound system.
The court also struck down a separate tariff for music publishers in downloaded video games and movie soundtracks.
The challenge for lawmakers is to draft legislation that is technology neutral, according to Dr. Teresa Scassa, the Canada research chair for information law at the University of Ottawa.
"It used to be that the changes in technologies were just neater gizmos," she said, citing the evolution from audio cassette recorders to the ability to burn DVDs. "Now it's a total paradigm shift ... You're no longer talking about the technologies where people can make copies, but the technologies people have can make copies, can manipulate the works, manipulate the content they receive."
In their ruling, the Supreme Court justices said granting a technology-neutral right to consumers and retailers ensured the law's continued relevance in a continuously evolving environment.
Scassa said rulings like the one handed down Thursday will be common as the years go on. It took 15 years to pass the recently approved amendments to the country's Copyright Act and it's not likely there will be time to make further modifications as the technology changes.
"The copyright law may simply have to do and the courts that deal with the litigation that arises under the legislation will have to interpret it in ways that adapt to new and changing technologies," she said.
The court also ruled on other copyright issues yesterday.
In another dispute between telecommunications companies and SOCAN, Supreme Court justices struck down the music publisher's appeal to collect royalties on the 30 to 90-second clips that consumers can listen to before deciding to purchase a song.
The use of these free previews can be classified as research and are covered under the Copyright Act's fair dealing clause - which allows the use of copyrighted material for private study.
Study was also the focus of a third case between educators and licensing agency Access Copyright and publishers of printed literary and artistic works.
Private study and research is covered under the fair dealing provisions, which has historically meant that students were allowed to make photocopies from textbooks and other protected works. Elementary and secondary school teachers were not afforded that right and had to go through the necessary channels to receive permission and licenses to make copies for their students because their purpose was "instruction" versus "private study."
But the justices argued that private study doesn't have to be completed in isolation and that teachers don't have ulterior motives to make money off of the copies created for their students and that the Copyright Board should reconsider its ruling.
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