Copyrighted material explanation

A Shakeup in Canadian Copyright Policy?  January 23, 2011 – 03:16 pm
Additional explanation of

Just after the adoption of Bill C11, the Supreme Court of Canada handed down five decisions that mark a significant shift in copyright policy, a second wave after the trilogy of Théberge,  CCH and  SOCAN v CAIP. Read my take at the time here.

The five cases dealt in one form or another with collective management of copyright.

Of these five cases, three will likely be seen as less controversial. In SOCAN v Bell, a unanimous court dismissed an appeal from a decision by the Copyright Board of Canada,  that had found that listening to previews of a song in deciding whether to make a purchase was fair dealing (research).  The decision is interesting in that it proceeds formulaically, in a way that may seem familiar to US readers, along the lines drawn in CCH, in determining whether a use argued to be fair falls under one of the purposes of fair dealing and then, as a factual matter, whether this use is fair based on the CCH factors.  The Court did, however, note that US cases on fair use were not particularly helpful in a Canadian context.

In a second case,  Re:Sound v. Motion Picture Theatre Association of Canada,   that involved the 1961 Rome Convention a unanimous Court agreed with the Board that sound recordings embedded in movie soundtracks were not to be treated as sound recordings. Though the international discussion in the opinion is not entirely satisfactory, given the language of section 2 of the Canadian Copyright Act, it is difficult to disagree with the outcome.

Source: The TRIPS Agreement

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Fair Use Explanation


A portion:
One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reprod... infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

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