Supreme Court To Clarify Copyright In Ephemeral Recordings

The Supreme Court of Canada (Court) recently granted leave to appeal CBC v Sodrac 2003 Inc, 2014 FCA 84, a copyright case dealing with whether the act of broadcasting a protected work is subject to a separate royalty for a recording made for the sole purpose of giving effect to a broadcast (an “ephemeral recording”) in addition to a royalty for the broadcast itself. The case is expected to clarify the Court’s ruling in ESA v SOCAN, 2012 SCC 34, in which the Court held that the act of downloading a video game containing a protected work did not engage a separate right to communicate the work on the basis of the principle of “technological neutrality”: 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. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies (ESA v SOCAN, para. 9). In CBC v Sodrac 2003 Inc, the Federal Court of Appeal allowed a separate royalty for ephemeral recordings on the basis that the Copyright Act clearly provides for a separate reproduction right, and that right is engaged by ephemeral recordings notwithstanding the technological neutrality principle set forth in ESA v SOCAN. It will be interesting to see how the Court will strike a balance in this case between the interests of rights holders and those of broadcasters, and how it will continue to apply the technological neutrality principle under Canadian law. Summary by: Darren Hall