IP Perspectives

Supreme Court of Canada issues landmark copyright decisions

This special edition of IP Perspectives focusses on the unprecedented release on July 12, 2012, of five decisions of the Supreme Court of Canada, each concerning the law of copyright. The impact of the five decisions is wide-reaching, ranging from conventional concepts such as the application of the fair dealing defence to copying of educational materials by teachers in the classroom, to the application of the Copyright Act to relatively new technologies, including the electronic delivery over the Internet of streaming or preview transmissions of musical works. By arranging to release all five decisions on a single day, the Court is clearly emphasizing its view of the importance of copyright to all sectors of the Canadian economy.

A case summary of each of the five decisions follows below.


Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (July 12, 2012) — Downloading a permanent copy of a video game incorporating musical works is not a communication to the public of the musical works. The Supreme Court of Canada held that the electronic delivery over the Internet of a permanent copy of a video game containing a copyrighted musical work does not entitle the copyright owner to additional royalties for communicating the musical work to the public by telecommunication when the copyright owner has already received royalties for the reproduction of the musical work.

Read more »


Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 (July 12, 2012) — Public performance royalties are payable by online music services for on-demand streaming but not for downloads. According to the Supreme Court of Canada, music streamed from an online music service to customers at the customers' request constitutes a "communication to the public" by telecommunication and as such is subject to a royalty.

Read more »


Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36 (July 12, 2012) — Free previews amount to fair dealing and do not infringe copyright. The Supreme Court of Canada considered whether free previews of musical works provided over the Internet by online music service providers fit within the fair dealing exception to copyright infringement. The Court unanimously held that the free previews satisfy the test for fair dealing and therefore do not infringe copyright.

Read more »


Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (July 12, 2012) — The Supreme Court provided guidance on the proper application of the "fair dealing" test. The Supreme Court of Canada considered whether the photocopying of textbook excerpts by teachers, on their own initiative, to distribute to students as part of course materials is "fair dealing" pursuant to the provisions of the Copyright Act. A majority of the Supreme Court concluded that the Copyright Board made several errors in its analysis of the "fairness factors" to be considered and thus allowed the appeal and remitted the matter back to the Copyright Board for reconsideration.

Read more »


Re:Sound v Motion Picture Theatre Associations of Canada, 2012 SCC 38 (July 12, 2012) — Pre-existing sound recordings accompanying cinematographic works are part of a soundtrack and are excluded from equitable remuneration. The Supreme Court of Canada confirmed that pre-existing sound recordings that accompany a cinematographic work are part of a soundtrack and are therefore excluded from equitable remuneration under the Canadian Copyright Act.

Read more »


Follow @smartbiggar


55 Metcalfe St. Suite 900
PO Box 2999 Station D
Ottawa ON  K1P 5Y6
t. 613.232.2486
f. 613.232.8440


Box 111 Suite 1500
438 University Ave.
Toronto ON  M5G 2K8
t. 416.593.5514
f. 416.591.1690


Suite 3300
1000 De La Gauchetière St. W.
Montreal QC  H3B 4W5
t. 514.954.1500
f. 514.954.1396


2300-1055 West Georgia St.
PO Box 11115
Vancouver BC  V6E 3P3
t. 604.682.7780
f. 604.682.0274

To offer your feedback on this newsletter or any of its articles, please contact:


The preceding is intended as a timely update on Canadian intellectual property law. To request a copy of any decision, paper or legislative document, or for more detailed information or to make suggestions, kindly contact an author of the relevant article or the editors, Elliott S. Simcoe or Christine N. Genge. The contents of this newsletter are informational only and do not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly. To join the IP Perspectives mailing list, be removed from the mailing list or make changes to contact information, please send an email to ipperspectives@smart-biggar.ca.

Smart & Biggar/Fetherstonhaugh

Ottawa   /   Toronto   /   Montreal   /   Vancouver