Friday, July 29, 2011

Wire Report on the Music Canada (CRIA) "challenge of the scope of the Supreme Court's CCH precedent"

The Wire Report has a story (no paywall)  on the Music Canada (CRIA) factum in the forthcoming SOCAN “previews” case in the Supreme Court of Canada (“SCC”)  and how its  “arguments amount to a challenge of the scope of the Supreme Court's CCH precedent” and how, in turn,  it may affect the current post-secondary tariff proceeding in at the Copyright Board, where AUCC is the lead objector. The article points out that “Music Canada and the AUCC are both represented by the same lawyer, Glen Bloom, of Osler, Hoskin & Harcourt LLP.”

The article quotes Sam Trosow and Ariel Katz on the CRIA factum:
“CRIA is asking the court to significantly scale back the scope of fair dealing,” Sam Trosow, associate professor at the University of Western Ontario’s Faculty of Law and Faculty of Information and Media Studies, wrote on his blog late last month.
“What they propose is a general framework for exceptions,” Ariel Katz, a law professor at the University of Toronto, added in an interview.
“It’s broader than research. It applies to private study, review and all the other exceptions.”
I was asked by the Wire Report what would be the fallout be from a narrower fair dealing framework if Music Canada (CRIA) succeeds on the arguments in its SCC factum. I am quoted as saying:
“There could be much higher costs in the educational system—potentially tens of millions per year—and much less access to essential information in Canadian schools, colleges and universities than other competitive countries such as the U.S.A. enjoy.”
“It would be a self-inflicted serious wound for Canada—nothing less.”
It’s fair to say that fair dealing will be the main substantive issue in two forthcoming SCC cases - the SOCAN “previews” case mentioned above and the CMEC K-12 case, which will be heard on December 6 and 7, this year respectively. Fair dealing will also likely be the main issue in the current Copyright Board post-secondary case. The SCC will likely rule on these fair dealing cases by June or July of next year, based upon its normally very timely and extremely efficient record in rendering judgments.

The Copyright Board post-secondary case won’t likely be heard for a long time after that. Interestingly, the Copyright Board case involving Provincial and Territorial Governments Tariffs is scheduled to start October 2, 2012. That case, too,  could also be profoundly affected by the SCC’s judgments - since it would seem logical to assume that a lot of the copying going on inside provincial governments would qualify as “research” in light of the CCH decision.  One would assume that, in both of these pending Board cases, the evidence being collected and the arguments being framed will be suitable to fully assist and inform the Copyright Board with respect to any conceivable rulings of the SCC on fair dealing.

And then there’s that little question of what Parliament might do in the meantime...particularly with respect to “education”.


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