Like Australia, Canadian copyright law has its origins in English law. The Copyright Modernization Act 2012 will introduce new permissible fair dealing purposes of education, parody and satire into Canadian law. The impact of these new exceptions will be even greater following the Supreme Court of Canada’s broad interpretation of fair dealing in two decisions handed down on 12 July.

Society of Composers, Authors and Music Publishers of Canada, et al. v. Bell Canada, et al. [2012] SCC 36

Some commercial Internet sites allow users to preview excerpts of works before purchase (eg. Apple’s iTunes store). In regard to online music services, a preview is an excerpt (usually 30 seconds or less) of a sound recording that can be streamed so that consumers may decide whether to purchase a download. On October 18, 2007, the Board released a decision, part of which, rejected SOCAN’s proposal to place a tariff on previews. The board reasoned that this constituted fair dealing, as the users were conducting consumer research.

Section 29 of the Canadian Copyright Act contains an exception for fair dealing for the purposes of research or private study, similar to sections 40 and 103C of the Australian Copyright Act allowing fair dealing for the purposes of research or study.

The question before the Court was whether these previews constituted fair dealing for the purposes of research.

The Supreme Court unanimously dismissed the appeal. Analysing whether the previews were provided for the purpose of research, the Court stated that “research” need not be for creative purposes only, and that the term must be given a large and liberal interpretation. The Court determined that the provision of the previews was a fair dealing because the process did not adversely affect the purchase of the music.

You can read the full decision here:

http://scc.lexum.org/en/2012/2012scc36/2012scc36.html

Province of Alberta et al v. Access Copyright [2012] SCC 37 – The K-12 “education” case

The Board certified a tariff with respect to certain photocopies made in schools. The Ontario school boards and affected Ministries of Education appealed the Board’s decision with the contention that teacher-initiated photocopying constituted fair dealing for the purposes of education.

Section 29 of the Canadian Copyright Act contains a fair dealing exception for the purposes of research or private study similar to sections 40 and 103C of the Australian Copyright Act.

The question before the Court was whether the photocopying of excerpts primarily from textbooks for use in classroom instruction constituted fair dealing. It should be noted that this kind of activity is specifically covered under the Part VB statutory licence in the Australian Copyright Act.

The Supreme Court of Canada, in a 5-4 split, allowed the appeal and has remitted the matter to the Board. The majority reasoned that the Board erred in distinguishing between the purposes of instruction and research or private study.

You can read the decision here:

http://scc.lexum.org/en/2012/2012scc37/2012scc37.html

The Supreme Court of Canada’s broad interpretation of fair dealing for research or study will no doubt warrant examination as part of the Australian Law Reform Commission’s current inquiry into copyright exceptions.

On the same day, the Supreme Court of Canada also handed down decisions dealing with the definition of “communication to the public” and the right of copyright owners in sound recordings to receive remuneration for use of their recordings in television broadcasts and film screenings.

- Entertainment Software Association, et al v. Society of Composers, Authors and Music Publishers of Canada [2012] SCC 34 http://scc.lexum.org/en/2012/2012scc34/2012scc34.html

- Rogers Communications Inc., et al v. Society of Composers, Authors and Music Publishers of Canada [2012] SCC 35 http://scc.lexum.org/en/2012/2012scc35/2012scc35.html

- Re: Sound v. Motion Picture Theatre Associations of Canada, et al. [2012] SCC 38

http://scc.lexum.org/en/2012/2012scc38/2012scc38.html

Together, these decisions signal a significant shift in the Canadian copyright system

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The Attorney-General has at long last released the final terms of reference for the Australian Law Reform Commission’s review of copyright.

Draft terms of reference were released for public consultation in March this year. It is understood that the Attorney-General’s Department received in excess of 60 submissions in response to the draft terms of reference.

While the focus of the final terms of reference is the same as the draft terms of reference, some changes have been made.

The final terms of reference are available here:

http://www.ag.gov.au/copyright

It is understood that the Australian Law Reform Commission intends to release an issues paper for public consultation in August, with submissions due in November. You can access the ALRC website here:

http://www.alrc.gov.au/inquiries/copyright

In addition, the Attorney-General’s Department has announced a review of the exceptions to liability for circumventing access control technological protection measures (TPMs).

A number of reviews have been conducted since the provisions relating to TPMs were first introduced into the Copyright Act in 2001. The last of these reviews took place in 2006, although no outcome was ever announced.

The TPM review guidance note is available here:

http://www.ag.gov.au/copyright

There will be a two-stage submission process. Initial submissions are due on 17 August 2012.

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After more than 12 years of negotiation, a new treaty which recognises the rights of audiovisual performers in their performances is set to become a reality.

Yesterday, the World Intellectual Property Orgnisation (WIPO) Diplomatic Conference to finalise the treaty successfully concluded in Beijing.

Australia was represented at the Conference by officials from the Attorney-General’s Department and the Department of Foreign Affairs and Trade. Representatives from the Screen Producers Association of Australia and the Media Entertainment and Arts Alliance (the union representing Australian actors) also attended the Conference.

The treaty will enter into force once it has been ratified by 30 members states. It is expected that the Australian Government will conduct a public consultation process to consider ratification of the treaty.

You can view WIPO’s press release and access the treaty text here:

http://wipo.int/pressroom/en/articles/2012/article_0013.html

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The Government has released the Final Report of the Convergence Review today.

In April 2011 the Government appointed a Convergence Review Committee to examine the policy and regulatory frameworks that apply to the converged media and communications landscape in Australia. The Committee engaged in widespread consultations and released an Interim Report in December 2011.

While the Convergence Review did not specifically look at copyright issues, it attracted the interest of many copyright stakeholders. The TV Now decision handed down by the Federal Court on 27 April is an example of how convergence is impacting copyright law – see our piece at http://www.copyright.org.au/news-and-policy/details/id/2061/

In the draft terms of reference for the Australian Law Reform Commission Review (ALRC) of Copyright, the Attorney-General has asked the ALRC to take into account the recommendations of the Convergence Review. View these at http://www.ag.gov.au/Consultationsreformsandreviews/Pages/Draft-Terms-of-Reference-for-the-Australian-Law-Reform-Commission-Reference-on-Copyright.aspx

The Final Report of the Convergence Review can be viewed here:

http://www.dbcde.gov.au/digital_economy/convergence_review

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Last year Copyright Agency and Viscopy announced their plan to streamline their operations by entering into a service agreement, subject to regulatory approval.

http://www.copyright.org.au/news-and-policy/details/id/2018/

Today the ACCC has issued a draft determination authorising the arrangement. ACCC Chairman Rod Sims said that “the service agreement will result in significant cost savings to artists and licensees, and operational efficiencies for the administration of copyright licensing".

To view the ACCC press release

http://www.accc.gov.au/content/index.phtml/itemId/1044452/fromItemId/2332

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The Attorney-General has today released draft terms of reference for the Australian Law Reform Commission inquiry into copyright.

In a press release the Attorney-General said:

"The draft terms of reference ask the ALRC to examine the adequacy and appropriateness of a broad range of exceptions in the Copyright Act, including time shifting.

The draft terms of reference also direct the ALRC to consider whether exceptions should allow the legitimate non-commercial use of copyright works for uses on the internet such as social networking."

The draft terms of reference are available here:

http://www.ag.gov.au/Consultationsreformsandreviews/Pages/Draft-Terms-of-Reference-for-the-Australian-Law-Reform-Commission-Reference-on-Copyright.aspx

Submissions are due on 27 April 2012.

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