This document summarizes key Canadian court cases regarding technology and copyright law. Recent decisions found that downloading a video game is not a communication but obtaining a copy, that on-demand music streams are communications to the public, and that previewing music could be considered fair dealing. Network personal video recorders were found to involve the broadcaster in copying. Links alone do not constitute publication, and copyright reform aims to address exceptions for formats like user-generated content.

1. McCarthy Tétrault Advance™
Building Capabilities for Growth
RUIT Conference 2012: Technology
and Innovation in the 21st Century
Technology Challenges Law
Barry B. Sookman
bsookman@mccarthy.ca
416-601-7949 November 3, 2012
McCarthy Tétrault LLP / mccarthy.ca 11933209

2. Technology and the law
¬ Entertainment Software Association v. Society of Composers,
Authors and Music Publishers of Canada, 2012 SCC 34 (ESA v
SOCAN)
¬ Rogers Communications Inc. v. Society of Composers, Authors and
Music Publishers of Canada, 2012 SCC 35 (Rogers v SOCAN)
¬ Society of Composers, Authors and Music Publishers of
Canada v. Bell Canada, 2012 SCC 36 (SOCAN v Bell)
¬ Crookes v Newton 2011 SCC 47
¬ National Rugby League Investments Pty Limited v Singtel Optus
Pty Ltd [2012] FCAFC 59 (April 2012) (National Rugby v Optus)
¬ The Copyright Modernization Act
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3. Internet as a technological taxi
¬ESA v. SOCAN is a download of a video game a “communication”
within the meaning of Section 3(1)(f) of the Copyright Act?
¬The right to “communicate” is connected to the right to perform a work
and not the right to reproduce permanent copies of the work.
¬A “download” “is merely an additional, more efficient way to deliver
copies of the games to customers. The downloaded copy is identical to
copies purchased in stores or shipped to customers by mail, and the
game publishers already pay copyright owners reproduction royalties
for all of these copying activities.”
¬The “Internet is simply a technological taxi that delivers a durable copy
of the same work to the end user”.
¬Use of technological neutrality principle to prevent technology from
distorting traditional copyright concepts.
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4. Push/pull and copyright
¬ Rogers v. SOCAN: are on-demand transmissions of music streams
as part of online music services communications that are “to the
public”?
¬ The term “telecommunication” should be broadly construed so as to
apply to communications that do not depend on the types of
technology used to effect the communication.
¬ An on-demand communication of a work to members of the public
can be a communication that is to the public. The Act applies to
push as well as to pull means of transmitting works to the public.
¬ The applicability of the communication to the public right is not
dependant on the arbitrary choice of business models.
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5. Previews, fair dealing and user rights
¬ SOCAN v Bell: Can online music providers make previews of music available
to potential music purchasers as a fair dealing?
¬ Fair dealing is a “user right”.
¬ The term “research” must be given a large and liberal interpretation and can
include users listening to previews to decide whether to purchase music.
“Research” is not limited “to creative purposes”. It can be piecemeal, informal,
exploratory, or confirmatory. It can in fact be undertaken for no purpose except
personal interest.”
¬ “The relevant perspective when considering whether a dealing is for an
allowable purpose is that of the user and not the copier.”
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6. Network PVRs – a search for the copier
¬ National Rugby v Optus: who makes copies of TV shows on a network PVR?
¬ Legality of TV Now service enables a subscriber to have free to air television
programmes recorded as and when broadcast and then played back at the
time (or times) of the subscriber’s choosing on the subscriber’s compatible
Optus mobile device or personal computer.
¬ “We consider that Optus’ role in the making of a copy – ie in capturing the
broadcast and then in embodying its images and sounds in the hard disk – is
so pervasive that, even though entirely automated, it cannot be disregarded
when the “person” who does the act of copying is to be identified.”
¬ “So one comes back to the question of construction raised by the word “make”
and its application in the present setting. As we have indicated, Optus not only
has solicited subscriber utilisation of its Service, it has also designed and
maintained a sophisticated system which can effectuate the making of
recordings wanted for viewing by subscribers. For s 101 purposes, it manifestly
is involved directly in doing the act of copying. It counts as a maker of copies
for the subscriber.”
McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11536863 6

7. Links and liability
¬ Crookes v Newton
¬ “A hyperlink, by itself, should never be seen as
“publication” of the content to which it refers.”
¬ “It is the actual creator or poster of the
defamatory words in the secondary material who
is publishing the libel when a person follows a
hyperlink to that content.”
McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11536863 7

8. Copyright reform and technology
¬ The Copyright Modernization Act and technology
¬ exceptions to permit format shifting, time shifting,
making back-up copies, creating and disseminating
UGC works
¬ exceptions for ISPs and search engines
¬ exceptions for encryption research, security testing,
and temporary technical computer processes
¬ new right of enablement
¬ protect Technological Protection Measures (TPMs)
McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11536863 8

9. Slides available @
barrysookman.com and
mccarthy.ca
.
McCarthy Tétrault S.E.N.C.R.L., s.r.l. / mccarthy.ca 11536863 9

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