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The Copyright Pentalogy

Michael Geist


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1Copyright cases typically reach the Supreme Court of Canada (the Court) only once every few years, ensuring that each case is carefully parsed and analyzed. On 12 July 2012, the Court issued rulings on five copyright cases in a single day, an unprecedented tally that shook the very foundations of copyright law in Canada. In fact, with the decisions coming just weeks after the Canadian government passed long-awaited copyright reform legislation, Canadian copyright law experienced a seismic shift that will take years to sort out.

  • 1 Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36, [2012] 2 (...)
  • 2 Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, (...)
  • 3 Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] (...)

2Not surprisingly, the immediate coverage of the Court’s decisions, which were quickly dubbed the “copyright pentalogy,” focused on the specific outcomes for the litigants, including wins for Bell and computer giant Apple (no fees for song previews on services such as iTunes),1 the entertainment software industry (no additional payment for music included in downloaded video games),2 and the education community (copying materials for instructional purposes may qualify as fair dealing).3

3Yet it took little time for the Canadian copyright community to begin to debate the larger implications of the decisions. Several issues quickly came to the fore. First, the cases provided an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users’ rights. The Court first raised the notion of balancing creator rights and user rights in 2004. Publisher and creator groups had urged the Court to retreat from its user rights approach, claiming it was merely a metaphor, yet the Court used these cases to re-emphasize the importance of users’ rights. The user rights analysis affects virtually all copyright cases, forcing all courts to ensure that there is a fair balance between the interests of creators and users. Moreover, the users’ rights framework has attracted growing attention worldwide, as Canadian copyright law is increasingly cited as the paradigm example for emphasizing both creator and user rights.

  • 4 ESA, supra note 2 at para 5.
  • 5 Ibid at para 9.

4Second, the Court endorsed a technology-neutral approach to copyright law. For example, in striking down the demand for payment for music included in downloaded video games, it noted that there is “no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet.”4 Instead, it likened the Internet to a “technological taxi” and warned that additional payments for a downloaded copy violated the principle of technological neutrality. It stated that the “principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user.”5

5In doing so, the Court effectively embedded a technology-neutral principle into the law that will extend far beyond these particular cases, as future litigants will undoubtedly argue that existing exceptions can be applied to new uses of copyright works to ensure technological neutrality.

  • 6 Bell, supra note 1 at para 22.

6Third, the Court continued its expansion of fair dealing by interpreting it in a broad and liberal manner. In Bell, where Bell and Apple argued that 30-second song previews could be treated as consumer research and thus qualify for fair dealing, the Court agreed, concluding that “limiting research to creative purposes would also run counter to the ordinary meaning of ‘research’, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest.”6

  • 7 Alberta (Education), supra note 3 at para 27.

7Similarly, in Alberta (Education), the Court adopted an expansive view of private study (another fair dealing category) by ruling that it could include teacher instruction and that it “should not be understood as requiring users to view copyrighted works in splendid isolation.”7 The decisions point to a very broad approach to fair dealing that can be used by a wide range of businesses and education groups to make the case that innovative uses of copyrighted materials qualifies as fair dealing and therefore does not require prior permission or compensation.

8This book represents an effort by many of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. This is the third such initiative, following on the 2005 book In the Public Interest: The Future of Canadian Copyright Law, to respond to the introduction of Bill C-60, and From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda, which addressed Bill C-32 (later Bill C-11), the 2010 copyright reform bill. The books have brought together many leading Canadian academics who are researching and writing about intellectual property with representatives from universities stretching from Dalhousie on the east coast to Simon Fraser University and the University of British Columbia on the west.

9This book followed much the same approach. All contributors from the prior books were invited to participate once again. In addition, new intellectual property scholars were identified and given the opportunity to contribute. This book features fourteen articles on copyright written by independent scholars from coast to coast. The diversity of contributors provides a rich view of the copyright pentalogy, with analysis of the standard of review of copyright decisions, fair dealing, technological neutrality, the implications of the decisions for copyright collective management and the scope of copyright law.

10While I am honoured to have again served as editor (and contribute my own work on the shift from fair dealing to fair use in Canada), each contributor was granted total freedom to address whatever aspects of the decisions they saw fit. There was no editorial attempt to prescribe a particular outcome or perspective. Indeed, the contributors differ in their views of the decisions and their support for the Court’s analysis and conclusions.

11Contributions are grouped into five parts. Part 1 features three chapters on standard of review and the courts. Part 2 examines the fair dealing implications of the copyright pentalogy, with five chapters on the evolution of fair dealing and its likely interpretation in the years ahead. Part 3 contains two chapters on technological neutrality, which the Court established as a foundational principle of copyright law. Part 4 features two chapters on copyright collective management and its future in the aftermath of the Court’s decisions. The scope of copyright is assessed in Part 5 with two chapters that canvass the exclusive rights under the copyright and the establishment of new “rights” associated with user-generated content.

Standard of Review and the Courts

  • 8 Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SC (...)

12While the copyright pentalogy may have shaken the foundation of Canadian copyright law, the cases themselves raised important administrative law questions about the standard of review. With all five cases originating with the Copyright Board of Canada, the interplay between the Copyright Board and Canada’s appellate courts is at issue throughout the five cases, with two decisions: Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada8 and Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), both specifically discussing standard of review issues.

13Graham Reynolds provides a powerful endorsement of the Court’s decisions. He argues that by failing to adopt a broad, liberal approach to fair dealing in Alberta (Education), the Copyright Board fell outside the range of acceptable outcomes. Therefore, as a matter of law, it was not open to the Copyright Board to reach the decision it did. Given that conclusion, Reynolds maintains that Abella J applied a reasonableness standard of review in a manner consistent with prior cases.

14The implications of Reynolds’s chapter extend to future fair dealing cases, as he notes that “one conclusion that we can draw from Alberta (Education) is that fairness (in the context of fair dealing) is not as discretionary a concept as it appears to be. Alberta (Education) and Bell clarify that the purpose of the Copyright Act requires a broad, liberal approach to fairness. By implication, then, fairness is not broad and open-ended; rather, it is infused with certain expectations with respect to the way in which it is to be applied (namely, in a large and liberal manner).”

15Paul Daly is more critical of the administrative law implications of the decisions, warning that there is a risk of confusion for lower courts. Daly is particularly critical of the Court’s refusal to accord deference to the Copyright Board. He argues that the Copyright Board is far more than a rate-setting tribunal. Rather, it is the body “best positioned to identify and develop the underlying principles of the [Copyright ] Act.”

16Daly’s chapter also considers the administrative law implications of the decisions beyond intellectual property. He notes that lawyers are likely to try to extend the administrative law findings beyond intellectual property and, in so doing, will undermine the principle of deference in administrative law decisions.

17Margaret Ann Wilkinson attempts to place the copyright pentalogy within the broader context of the Court’s jurisprudence. She notes that copyright has assumed an increasingly important role within the Court’s docket, yet there has been relatively little scholarly attention paid to how copyright fits within the larger jurisprudence of the Court.

  • 9 Théberge v Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 SCR 336 <>.
  • 10 CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 <> [ (...)
  • 11 Society of Composers, Authors & Music Publishers of Canada v Canadian Association of Internet Prov (...)
  • 12 Robertson v Thomson Corp, 2006 SCC 43, [2006] 2 SCR 363 <>.
  • 13 Euro-Excellence Inc. v Kraft Canada Inc., 2007 SCC 37, [2007] 3 SCR 20 <http:/>.

18Wilkinson’s study brings together the copyright pentalogy and the five other copyright cases rendered over the past decade: Théberge (2002),9 CCH (2004),10 the Tariff 22 decision (2004),11 Robertson (2006)12 and the Toblerone decision (2007).13 Wilkinson traces the judges participating in these decisions, noting that there has been a steady evolution in which judges have participated. Further, there are no discernible patterns among the common and civil law judges. Wilkinson identifies the most active Supreme Court justices on copyright, with Abella J having written or co-written reasons for all but one copyright-related case since she joined the Court in 2004.

Fair Dealing

19Given the centrality of fair dealing to the recent decisions, the issue is the most discussed in this book. Led by Abella J, the Court reaffirmed that fair dealing is a user’s right that must be interpreted in a broad and liberal manner.

20Ariel Katz begins the fair dealing analysis with an exceptional chapter examining the legislative history of the fair dealing provision contained in the 1911 UK Copyright Act. Katz discovers that the provision was intended to be flexible, yet for more than a hundred years, courts treated the fair dealing principle in a narrow, restrictive manner.

21Katz characterizes the distinction between fair use and fair dealing as a “myth,” marshalling evidence culled from the historical record to make the case that the codification of fair dealing in 1911 was not designed to limit its application to the five enumerated purposes included in the statute. Katz’s unique history of fair dealing suggests that the Court has not expanded fair dealing, but rather has aligned its treatment of the exception with the historical record.

22My substantive contribution covers similar terrain, but without reference to the historical record. I argue that the Court’s fair dealing analysis, when coupled with Bill C-11’s statutory reforms, may have effectively turned the Canadian fair dealing clause into a fair use provision. The Court’s emphasis on the need for balance between creators’ rights and users’ rights laid the foundation for a shift away from a two-stage fair dealing test toward a single analysis based on fairness of the use of a copyrighted work. By elevating fair dealing to a user’s right, it made little sense for the law to premise the exercise of those rights on fitting within a small number of narrowly defined purposes.

23While Canadian copyright law still involves the two-stage analysis, the first stage has become so easy to meet that Canada appears to be inching closer to fair use. Indeed, the breadth of the fair dealing purposes is now so wide—eight purposes covering most imaginable uses—that future Canadian fair dealing analyses are likely to involve only a perfunctory assessment of the first-stage purposes test together with a far more rigorous analysis (what the Court in Bell described as “heavy-hitting”) in the second-stage, six-factor assessment.

24Giuseppina D’Agostino shifts the fair dealing discussion in her chapter with a critical assessment of the decisions. D’Agostino argues that the Court’s reliance on the six-factor test found in the CCH decision has elevated the framework to the level of law. Describing the approach as “six-factor absolutism,” she maintains that rigidity in applying the six-factor test ultimately muddles the state of fair dealing in Canada.

25D’Agostino believes the Court’s decisions have created a framework whereby assessing fairness is now a matter of arithmetic, with courts simply adding up the six factors in order to determine whether the proposed use is more or less fair. D’Agostino argues that a more flexible approach is needed, with courts free to reject a one-size-fits-all framework in favour of a more nuanced analysis.

26Sam Trosow considers how the decisions will affect fair dealing practices in the post-secondary education sector. Given the heated debates over collective licensing within the education sector, Trosow’s chapter provides a timely look at how the decisions and recent copyright reforms will be implemented at the local level.

27Trosow argues that the decisions and statutory reform should alleviate concerns about fair dealing uncertainty that may have previously led to a reluctance among some institutions to rely on fair dealing as a cornerstone of an institutional copyright policy. Nevertheless, he remains somewhat pessimistic, pointing to “the problems of undue risk aversion, overreaching on the part of content owners, and an inadequate understanding of copyright throughout the academy.”

28Meera Nair’s comparative analysis of the Canadian and Israeli paths toward fairness of use is the fifth and final chapter in the fair dealing part. Nair points out that the Israeli Supreme Court was seized with concerns related to restrictive copyright even earlier than the Canadian Supreme Court. The Israeli court, facing a legal framework that restricted commercial, satirical uses in 1993, began introducing more flexibility to the fair dealing provision. Almost fifteen years later, Israeli copyright reform included a fair use provision.

29Despite the introduction of a fair use provision, Nair notes that the Canadian jurisprudence on fair dealing features a stronger articulation of users’ rights within the framework. By contrast, the Israeli court has been more conservative, yet it has emphasized the importance of transformative uses.

Technological Neutrality

30The inclusion of technological neutrality as a foundational principle of Canadian copyright was a landmark aspect of the copyright pentalogy. The message from the Court is clear: copyright law should not stand in the way of technological progress and potentially impede the opportunities for greater access afforded by the Internet through the imposition of additional fees or restrictive rules that create extra user costs. Viewed in this light, technological neutrality as a principle within Canadian copyright may have the same dramatic effects on the law as the articulation of users’ rights did in 2004.

31Carys Craig opens the technological neutrality part with a critical assessment of the significance of the principle and its potential to guide future development of copyright law and policy in Canada. Craig’s chapter examines the various meanings that can be attached to technological neutrality, as a principle of both regulation and statutory interpretation.

32Craig offers a strong endorsement of technological neutrality as a guiding principle for Canadian copyright, arguing that its justification can be found in the oft-referenced need for balance in copyright. Her chapter emphasizes the importance of thinking of technological neutrality in a functional sense with the goal of shaping copyright norms that treat technologies in a roughly equivalent fashion in order to preserve the copyright balance in the digital environment.

33Greg Hagen’s discussion of technological neutrality considers its potential application to contentious copyright policy issues. For example, Hagen argues that the principle of technological neutrality can be used to create new exceptions to the prohibition on circumventing technological protection measures (TPMs, often referred to as “digital locks”) and to strike down some prohibitions (which make user rights subject to not circumventing a TPM) on the basis of a conflict with the rule of law.

34Hagen notes that anti-circumvention legislation favours incumbents over new market rivals, raising concerns about whether such rules meet the technological neutrality principle articulated by the Court. Indeed, Hagen suggests that courts should be empowered to establish new exceptions to the anti-circumvention rules in order to preserve technological neutrality.

Copyright Collective Management

35The complexity of copyright collective management is a recurring theme in debates over whether the Copyright Board of Canada, the Copyright Act and industry practice result in multiple payments for use of the same works. Jeremy de Beer describes this as “copyright royalty stacking” in his important chapter that unpacks “the layering of multiple payments for permission—through a certified tariff, collective blanket license or individual contract—to use copyright-protected subject matter.”

36The chapter notes there is reason for optimism as the decisions, along with recent copyright reforms, may reduce copyright royalty stacking. While this may result in reduced revenues for copyright management organizations in the short term, the longer-term effects may be more positive, with increased certainty, reduced transaction costs, and a growing market. Creators—whether individually or acting through collective management organizations—would be the net beneficiaries, with more commercial opportunities and innovation in the distribution of creative works.

37With copyright collectives involved as parties in all the copyright pentalogy cases, the implications of those decisions are particularly pronounced for the collectives and the future of copyright collective management. Daniel Gervais sharply criticizes the Court’s decisions, which, he says, “can be seen as a frontal assault on collective management of rights.”

38Gervais assesses the ESA, Bell and Alberta (Education) decisions, finding each wanting. He maintains that the decisions adopt a binary view of copyright—good vs. bad, control vs. free—when the reality is far more nuanced. Gervais argues that collective management organizations better reflect that nuance and that a system that effectively replaces collective management with fair dealing runs the danger of creating greater uncertainty and lost revenues for creators.

The Scope of Copyright

39While the public’s attention in ESA was focused primarily on duelling references to “technological taxis”, Elizabeth Judge notes that the more far-reaching implication of the decision lies in the nature of exclusive rights of copyright for works. At issue are the rights enumerated in section 3(1) of the Copyright Act and the more specific rights listed in sections 3(1)(a)-(i). The majority ruled that the three rights defined in 3(1)—reproduction, performance and publication—are exhaustive with the subsection 3(1)(a)-(i) rights illustrative of the general rights. The dissent disagreed, concluding that all rights are distinct.

40Judge struggles with the majority’s interpretation of the scope of copyright, citing statutory interpretation principles, prior case law, and differing approaches in other jurisdictions. She notes that the subsection rights do not always map neatly onto one of the three general rights. For example, section 3 (1)(a) refers to translation, yet its comprehensive coverage extends beyond mere reproduction.

41Teresa Scassa links one of the most notable reforms in Bill C-11—the inclusion of a new user-generated content provision—with the Court’s decisions. Scassa argues that the statutory and case law developments “signal a new paradigm for copyright law in Canada—one that tolerates a much greater level of interaction with copyright-protected works.”

42This extension in the scope of copyright from a user perspective has been criticized by some as an unfair limitation on the rights of copyright owners. Yet Scassa persuasively illustrates how the reforms reflect changes in the way cultural products are created and distributed.


1 Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36, [2012] 2 SCR 326 <> [Bell].

2 Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 SCR 231 <> [ESA].

3 Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 SCR 345 <> [Alberta (Education)].

4 ESA, supra note 2 at para 5.

5 Ibid at para 9.

6 Bell, supra note 1 at para 22.

7 Alberta (Education), supra note 3 at para 27.

8 Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 SCR 283 <> [Rogers].

9 Théberge v Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 SCR 336 <>.

10 CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 <> [CCH].

11 Society of Composers, Authors & Music Publishers of Canada v Canadian Association of Internet Providers, 2004 SCC 45, [2004] 2 SCR 427 <> [SOCAN v CAIP].

12 Robertson v Thomson Corp, 2006 SCC 43, [2006] 2 SCR 363 <>.

13 Euro-Excellence Inc. v Kraft Canada Inc., 2007 SCC 37, [2007] 3 SCR 20 <http:/>.


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