I – Introduction a – La nature des droits intellectuels



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D - Titularité





L’auteur, dans la conception classique, est à la fois unique et singulier. Unique parce qu’il est le créateur personne physique, singulier car l’œuvre est comprise comme l’émanation d’un seul sujet, d’un seul esprit. Cette conception se prête mal aux nouveaux modes de création, plus collectifs, moins centralisé. Il suffit de penser à Web 2.0, ou l’élément participatif est essentiel. Elle explique également notre système est arrivé à la distinction entre l’auteur et le titulaire, une distinction fondamentale qui organise les rapports contractuels entre les différents intervenants dans la vie d’une « œuvre ».


E – Les droits conférés



La contrefaçon peut être directe ou indirecte. Il s’agit simplement de formes particulières de responsabilité qui peuvent entrainer des sanctions civiles ou pénales. La distinction directe indirecte est intéressante, elle n’est pas sans rappeler la différence entre la responsabilité délictuelle et quasi-délictuelle du fait des choses. Dans le cas de la responsabilité directe, il s’agit de déterminer s’il a été contrevenu à l’un des droits spécifiquement prévus à la loi – le « bundle of rights », la contrefaçon indirecte vise les acte de la personne qui aurait participer ou autoriser un acte illégal.


i – Le droit moral
        1. Snow v Eaton Centre (1982)


Jurisdiction

ONHCJ

Facts

Snow made a sculpture for the Eaton Centre consisting of 60 geese. At Christmas, the Eaton Centre put ribbons around the geese’s necks. Snow freaked out, said this violated his moral rights pursuant to (then) s. 12(7) of the Copyright Act which gives the author the right to restrain any distortion, mutilation or other modification of his work that would be prejudicial to his honour or reputation. Wants ribbons removed.

Issues

Are the decorations prejudicial to Snow’s honour or reputation, as per s. 12(7) of the CA?

Holding

Yes.

Reasoning

  • The sculpture is a “work” within the meaning of the CA. S. 12(7) consideration involves a certain subjective element or judgment on the part of the author so long as it is reasonably arrived at.

  • Snow says his work is being made to look ridiculous (like dangling earrings from the Venus de Milo). This opinion is shared by other respected artists.




Ratio

In assessing whether a moral right has been infringed, the court will assess whether there was prejudice to the honour/reputation to the author, taking into consideration the subjective judgment of the author provided it is reasonably arrived at.


Comments

This is the only (successful) case on vindication of moral rights under the CA. Also note that it is a lower level court decision



ii – Le droit de reproduction
              1. CCH v. Law Society of Upper Canada (2004)


        Jurisdiction

        SCC

        Facts

        The LSUC operates a library at Osgoode Hall, where they have photocopiers. They also provide a custom photocopying service. CCH and other publishers contend that this amounts to authorizing an infringement of their c/r's in headnotes, case summaries, topical indexes, and compilations of reported decisions. LSUC counterclaimed for a declaration of non-infringement.

        Issues

        On appeal:

        Did LSUC infringe publishers' c/r by (i) providing a custom photocopy service or

        (ii) maintaining self-service photocopiers and copies of the publishers' works in the library?

        This requires determing:



        • Whether the publishers' materials are protected by c/r (Yes)

        • Whether the library authorized infringement by having photocopiers available (No)

        • whether the LSUC's dealings with the works were “fair dealings” under s.29 C/R Act (Yes)

        • whether publishers consented to having its works reproduced in the library. ()

        On cross appeal:

        • Does the LSUC's transmission of copied works to user constitute “communications to the public” for s. 3(1)(f) of the Act? (No)

        • Did the LSUC infringe c/r by selling copiesof the act contrary to s. 27(2)? (No)

        • Does the LSUC qualify for an exemption as a library? (Yes, the library does)

        • Are the publishers entitled to a permanent injunction? (No)

        Holding

        The works are protected but there is no infringement b/c of the fair dealing exception in s. ___c/r.

        “The LSUC does not infringe c/r when a single copy of a reported decision, case summary, statute, regulation, or limited selection of text from a treatise is made by the Library in accordance with its access policy.”



        Reasoning

        • The Act provides protection for the expression of ideas, not for ideas themselves. The Act is a balance btw promoting public interest and providing a just reward for the creator. Thus:

          • s. 3: on c/r owners have the right to authorize copying of their works.

          • s. 27: it is an infringement for any person to do what only a c/r holder has the right to do

            • Exceptions: s. 29-29.2, which concern fair dealing and educational institutions, libraries, archives and museums.

        Are the materials protected by c/r? YES

        • There is c/r in every original literary, dramatic, artistic, and musical work.

        • To be original, a work must not be a mere copy. This view prevents creators from acquiring c/r’s through industry devoid of creativity. This was raised in Tele-direct, which emphasized the role of creativity in c/r.

          • Correct approach to understanding the requirement of originality is that it requires more than a mere copy and less than creative novelty. It requires skill and judgment .

          • This is consistent w/ the plain meaning of original, the history of c/r as protecting intellectual creation, recent Cdn jp (Tele-direct), and the balance that the Act attempts to strike (see Theberge). It is also a workable and fair standard.

        • Case summaries, headnotes, topical indexes, etc. show necessary skill and judgment


        Did LSUC authorize c/r violation by having photocopiers available? NO

        • Authorization is a question of fact, and courts should presume that a person who authorizes an activity only does so in so far as the law permits that activity to be done.

        • No evidence was to show that photocopiers had been used to violate c/r. It cannot be said that the LSUC implicity authorized infringement. The LSUC lacks sufficient control over patrons to permit the conclusion that it authorized c/r violations.


        Did the custom service violate c/r? (No) Is the custom service fair dealing? YES

        • Defendant has to prove that their activity falls w/in fair dealing in s. 29.

        • Fair dealing a right of the user. It is not an exception to the right of the c/r holder. As such it is not to be interpreted in a restrictive way.

        • Fair dealing requires that the purpose of the dealing was for either private research or study and that the dealing was fair. Research is broadly interpreted and it does not exclude research undertaken for profit (i.e. by a lawyer for a client).

          • f/d is always a question of degree.

        • Here: the purpose of the dealing as w/in statutory requirements, it was limited in scope (single copies distributed narrowly), and was not significant in its amount. It did not create competition with the c/r works. Nor were there many available alternatives to the dealing (licenses too impractical a tool).

        • The Library's access policy privileged research and minimized copying, and can be relied on by the LSUC to establish fair dealing.


        Does the LSUC's transmission of documents infringe the prohibition on telecommunication? NO

        • Faxing single copies of documents does not qualify as communication by telecommunication.


        Did the LSUC infringe c/r by selling protected works?

        • s. 27(2) prohibits sales of copies when the vendor knows that the work infringes c/r. For this secondary infringement to exist, there must be a primary infringement (i.e. 2nd infringement: the sale of copy depends on 1stinfringement: the act of copying). This can't be the case b/c no primary infringement was found.
            1. Cinar Corporation c Robinson (2011)


      Jurisdiction

      QCA

      Facts

      Robinson is an artist who in 1982 drew the first sketch of the character, Robinson Curiosité (R.C.) and put down in literary form a description of other associated characters and plotline for a potential TV show. He registered his copyright and tried to sell the idea to various TV production houses (including Cinar) but with no success. Lo and behold, in 1995 Cinar started showing Robinson Sucroë (R.S.) in Quebec. It looked like a rip-off of Robinson Curiosité and Robinson flipped. He sued for violation of copyright as well as in ECO.

      Issues

      Is Cinar’s production a violation of Robinson’s copyright? Is there ECO responsibility as well?

      Holding

      Yes. Yes.

      Reasoning

      • Robinson Curiosité is an original work. No doubt that it was the product of Robinson’s skill and talent.

      • R.C. was, admittedly an unfisihed work (consisting of numerous sketches, written descriptions, etc.), while R.S. is a finished, fully-fledged production. This makes it more difficult to ascertain the similarities between them, i.e. whether a substantial portion of the original work has been copied, but it is not impossible if the original work was sufficiently developed and surpassed the simple stage of ideas. R.C. did.

      • Contrary to Cinar’s claim, there is no basis for distinguishing between Robinson’s finished and unfinished sketches/work. It is all one work and similarities between Robinson’s work and Cinar’s production will be compared against the totality of Robinsons’s work (Cinar wanted to dismiss certain sketches on the basis that they were not sufficnetly developed)

      • Forgery is not limited to an exact copy. A “colorable imitation” suffices (art. 2 Copyright Act)

      • Art. 3 of the Copyright Act makes reference to the production or reproduction of a substantial part of a work. This is not a question of quantity but of quality (reproducing the essence or vital part of the work). There can be a substantial appropriation even when very few elements of the original work are copied.

      • Any differences between the works do not save Cinar because a colorable imitation suffices for a copyright violation. In fact, differences can sometimes be strategically deployed to conceal that something is a copy. They can, of course, also result in the creation of a new and original work. It is all a question of fact and nuance. However, if there is a substantial appropriation of the original work, the forgery remains a forgery regardless of the substantial intellectual effort of the forger.

      • Two modes of comparison: “perceptible” (what one can see directly: forms, colors, etc.) and intelligible (that which is not immediately obvious: structure, composition, interactions between characters, etc.). Here, the copyright violation cuts both ways (the character and the storyline)

      • Cinar could rebut the claim by proving that R.S. was an independent creation – this they do not do. This is a very heavy burden of proof.

      • In terms of who is responsible, Cinar clearly is, but its directors may or may not be. If they knowingly acted in violation of the copyright, the corporate veil will be lifted. That is not the case here. Similarly, whether the person who authorized the reproduction (art. 27(1)) is liable is a question of fact. The same goes for producers, etc. The title of the officers of the company is not key in determining their liability, but rather whether they consciously acted in violation of the copyright.



        1. Ateliers Tango Argentin c Festival d’Espagne & d’Amérique Latine (1997)


Jurisdiction

CSQ

Facts

Argaez was a part-time photographer and a tango lover. He was asked by Ateliers Tango to take photos to be used in the studio’s promotional materials. Argaez put a lot of work into these photographs: had actors pose for them in carefully chosen costumes at a specific location in Montreal, took numerous photos before he was satisfied, etc. Once the work was finished, he ceded rights to five of these photos to the studio for a period of five years. The studio used them in its promotional materials, and one appeared on its business card. The studio was approached by Bueno, the organizer of an upcoming Festival to take part in his event. They did not reach an agreement, but Bueno did obtain the studio’s business card and fell in love with Argaez’s photo. He then first had his son, an amateur, and later a professional photographer take the exact same photo (same place, same costumes, same postures, etc.) for the promotion of his Festival. He deceived the photographer by telling him that he, Bueno, owned the photo and showed him only a photocopy of it, claiming he’d lost the negatives. Ateliers Tango saw the photo in the Festival’s promotional materials and sued for breach of copyright.

Issues

Is Argaez’s photo a “work” protected by the Copyright Act?

If so, who is the title holder of the copyright?

If so, was there a violation of copyright by the Festival?

If so, who is responsible?




Holding

Yes: Algaez and Ateliers Tango are the title holders. Yes. Bueno, his son, the professional photographer he hired and his Festival (legal entity) are all responsible.

Reasoning

  • Art. 2 of the Act mentions photographs among protected artistic works

  • Such a work must be original and Argaez’s photo was: he’d put an enormous amount of work into it.

  • The question can be a challenging one with respect to photographs; however. Obviously, not just any casually taken photograph (of the Montreal Olympic stadium, for ex.) will make all other similar photos forgeries. It is the specific and personal choices made vis-à-vis the photo (place, angle, pose of subject, lighting, etc.) that make it worthy of protection. This photo was original as per art. 2 and 5 of the Act.

  • Argaez is the primary title holder of the copyright (art. 13(1)) which he temporarily ceded to Ateliers Tango. Ateliers can sue, no problem (art. 14(3)).

  • There was clearly a copyright violation here. Bueno had commissioned an exact copy of Argaez’s photograph, to the smallest detail.

  • For there to be a violation, however, a copy need not be identical. It is sufficient that there be a “colorable imitation” (art. 2), that a substantial portion of the original is copied. (art. 3(1)). Thus even the first photos taken by Bueno’s son constitute a violation of copyright.

  • The Festival has violated copyright as the legal entity that disseminated the forgeries

  • Bueno cannot hide behind the corporate veil. He commissioned the copies before the Festival was registered and masterminded the whole scam

  • The son participated in the violation and is also responsible.

  • The professional photographer is not saved by the fact of having acted in good faith. He was almost wilfully blind and should have known better. Bueno had only shown his a photocopy of the photograph – he should have inquired about it. He can, however, pursue Bueno in turn.


iii – Le droit de communication par télécommunication
      1. Association canadienne des fournisseurs Internet c Société canadienne des auteurs

      2. [2004] 2 RCS 427.


        1. BMG Canada Inc et al v John Doe


Jurisdiction

Federal Court

Facts

Motion brought by recording companies for disclosure of identities of certain users by their internet service providers. Recording companies allege that certain individuals have downloaded more than 1000 songs over which they have c/r, and want to identify them to seek recourse against them.

Issues

  • What legal test should the Court appyl?

  • Have the plaintiffs met this test?

  • If an order is issued, what should be the scope and terms of the order?

Holding

The legal test is based on 5 criteria discussed below, and the plaintiffs have failed to meet the test. No order is issued.

Reasoning

What legal test?

Based on the idea that parties who become mixed up in the tortious acts of others have a duty to assist the party wronged by the tort by giving him information and disclosing the identity of the wrongdoers.



  • Involves considerations of public policy, which may support non-disclosure.

  • The test for granting equitable bill of discovery has the following criteria:

    • the applicant must establish a prima facie case against the defendant;

    • the person from whom discovery is sought must be more than a mere bystander;

    • the person from whom discovery is sought must be the only practical source of the information desired;

    • the person from whom discovery is sought must be reasonably compensated for the expenses of providing the information in addition to his legal costs, and

    • the public interests in favour of disclosure must outweigh any legitimate privacy concerns.


Have the plaintiffs met this test?

The prima facie case faces three deficiencies:

    • their affidavits are based largely on hearsay (information provided to the head of a group working to combat c/r infringement by his employees)

    • there is no evidence to connect the pseudonyms of users to the IP addresses that the ISPs could provide.

    • There is no evidence of c/r infringement and only evidence of: installing download/upload software; copying music files to shared directories; using peer-to-peer applications; and making files available for downloading (does not demonstrate reproduction of recordings, authorization of their reproduction, distribution of unauthorized copies, or possession of unauthorized copies). Placing personal copies in shared directories is not the same thing as distributing copies.

    • CCH is the precedent for authorization: no difference between having books and a photocopier in proximity and making a personal copy of a work available online: a person does not authorize c/r infringement merely by authorizing the useof equipment which could be used to infringe a c/r.


More than a mere bystander?

ISPs are not mere bystanders. They provide a service essential to the activity in question.



Are ISPs the only practical source of information?

The Court does not have enough evidence to be able to say.



What compensation would ISPs require if they had to provide the information sought?

It is difficult for ISPs to associate the name and address of an account holder with an IP address at a given time. It involves significant corss checking of databases and would be costly.


Does the public interest in disclosure outweigh legitimate privacy concerns?

    • It is agreed that users would normally expect that their IP address will not be disclosed.

    • c/r holders are entitled to enforce their rights but in this case the Court is not confident that forcing disclosure would produce reliable information.




Association du logiciel de divertissement (ESAC), et al. c. Société canadienne

des auteurs, compositeurs et éditeurs de musique (SOCAN)

Jurisdiction

SCC (this is a FACTUM submitted to the Court, not a decision!)

Facts

SOCAN is responding to ESAC's appeal of a decision in the Federal Court. SOCAN is an association representing Canadian singers and songwriters. These creators have exclusive rights to communicate their works but can license others to do so. There have been previous decisions of the C/R Board and the Federal Court of Appeal that internet transmission of musical works is a communication to the public under the C/R Act. SOCAN claims there is no evidence recognizing that internet transmission as communication raises the cost of works such as movies, books, and games. It also claims that it is not seeking to control copying of c/r works, only their communication to the public.

Issues

Is there a statutory basis for a SOCAN tariff for the internet transmission of musical works forming part of video games? Specifically, is the internet transmission of musical works a communication within the meaning of C/r Act s.3 (1)(f)? (which requires communication to the public by way of telecommunication). Appellants claim that communication must be humanly perceivable; Respondents claim that this would restrict the legislative provisions in a new and severe manner.

Reasoning

  • “Communicate” should be interpreted according to its ordinary meaning and should not be limited by requiring that downloaded material be used immediately or that information be transferred in a form that humans can perceive.

  • This is consistent with the SCC's prior statements on communication: communication occurs when music is transmitted from the host server to the end user.

  • Communication must be to the public. In a case involving the tariff applicable to ringtones purchased and downloaded online, it was found that the terms of 3(1)(f) were fulfilled.

  • There is no material difference between streaming a file and downloading it in technical terms. The only difference is that streamed files are programmed to delete themselves after having been played. In any case, the provisions of the C/R Act are meant to be technologically neutral, so it would be perverse to find a legal difference between these two forms of acquisition.

  • Communication should not be giving a connotation which requires immediate use. Downloaders should not be able to escape c/r infringement and to do so at the expense of creators of musical works because of this false distinction.

    • There is an analogy to be drawn with video on demand.

  • The provisions of the C/R Act are meant to be technologically neutral.

    • Parliament has also amended the Act to address this: they have removed the word “radiocommunication” and replaced it with telecommunication in order to widen the net of communicative activities caught by s. 3(1)(f).

    • It would be countrary to how Parliament has expanded the definition of communication in the law to reduce that concept by requiring human perceptibility, and Canada has omitted to include such a requirement in the law despite its presence in NAFTA agreements.

  • It is flawed to evaluate communication by the time at which a file is viewed or played when all that matters is the transmission to the person using the file, which by its nature is communication.

  • C/r holders are entitled to dispose of each of the components of their c/r as they please. These components include rights to communicate, reproduce, performance, etc.

    • c/r is a bundle of sticks that can be separated out and put into commerce individually.




Propriété intellectuelle – Droit d’auteur – Le téléchargement d’un jeu vidéo qui comprend de la musique est-il une communication de cette musique au public par télécommunication au sens de l’al. 3(1)f) de la Loi sur le droit d’auteur, L.R.C. 1985, ch. C-42? – Est-ce la norme de la raisonnabilité ou bien la norme de la décision correcte qui s’applique au contrôle judiciaire de la décision de la Commission du droit d’auteur selon laquelle le téléchargement d’un jeu vidéo qui comprend de la musique est une communication de cette musique au public par télécommunication?


iiv – Le droit de distribution et la contrefaçon indirecte c

      1. MGM Studios, Inc v Grokster, Ltd, 545 US 913 (2005).




        1. Euro‑Excellence Inc. c. Kraft Canada Inc., [2007] 3 R.C.S. 21


Jurisdiction

SCC

Facts

EE imports and sells Toblerone and Cote d'Or chocolate. Kraft Canada is supposed to be the exclusive distributor of KFS and KFB, the two European entities who make these products. To allow Kraft to bring an action, KFS and KFB obtain c/r in the Kraft logo and license it to Kraft Canada. Kraft wants to prevent parallel importation of products bearing Kraft’s logos.

Issues

Can s. 27(2) of the Copyright Act, prohibiting parallel importation of copyrighted works, be used by KCI to prevent EE from importing chocolate bars on the basis that the logos on the bars are copyrighted?

Holding

No. That would be crazy.

Reasoning

Rothstein+3 (Departures from Bastarache):

  • Bad Bastarache: going beyond what is authorized by the law when drawing distinction between c/r and its acessory elements; creates equitable doctrine of “legitimate economic interest”

  • Departure from settled principles of interpretation and of law. Contrary to legislative intent. Remedies provided by Copyright Act are exhaustive.

  • Poor use of Kirkbi: cannot be basis of doctrine for abuse of rights or copyright misuse. In Kirkbi, SCC said TM’s can't be used to address issues meant to be captured by patents.

  • S. 63(4)(b) of CR Act says TM and C/R can co-exist.

  • TM = dos not attempt to prevent competitive usage of a product but rather to distinguish them as to their source.

  • Agrees logos are covered by c/r.

Purposive interpretation of C/R Act:
Kraft has to show that EE imported works which would have constituted a violation of copyright if they had been produced in Canada by the persons who produced them (s. 27(2)(e)). In this case, that would mean that the licensee (Kraft Canada) would have recourse against the licensor (KFS and LFB) - KFS and LFB cannot violate their own copyrights.

The objective of 27(2)(e) is to prevent foreign holders of c/r from making a product abroad, covering it with c/r, and then selling it at low cost in Canada. This would negate the value of a c/r issued in Canada.


Fish:

Agrees with Rothstein but doubts whether C/R Act can be transformed into law regulating IP for the purpose of controlling trade.
Bastarache+2: Can a bar of chocolate be the object of a copyright by virtue of protected works on its packaging?

Purpose of C/R Act

Theberge: promotion de la création et de la diffusion des oeuves artistiques et obtention d'une juste recompense pour le créateur. On doit maintenir une équilibre entre ces valeurs et ne reconnaît que «les intérêts économiques légitimes»

Pour avoir une oeuvre, il faut exister l'exercice du talent et du jugement d'un créateur.



Kirkbi: il y a des distinctions fondamentales entre des diverses formes de propriété intellectuelle et leurs fonctions économiques et politiques. Donc: DDA protège les gains économiques résultant de l'exercice du talent et du jugement. TM protège les parts de marché et biens commerciaux.

Protection offert par le DDA peut uniquement s'appliquer aux intérêts économiques qui ne sont pas liés accessoirement à l'oeuvre protégé par le DDA.



Objet de la legislation:

Protection pour les intérêts économiques légitimes qui résulte du talent et jugement. Il faut séparé le DDA d'un bien qui porte une oeuvre protégée. Les gains qui viennent de la vente du bien sont à ne pas confondre avec les intérêts économiques légitimes du titulaire de DDA.

- oeuvre peut être accessoire à un bien en commerce

- cf marques de commerce qui servent à distinguer les produits



Interprétation de la législation:

  • S. 27(e): forbids importing into Canada any copy of a work the production of which would constitute a violation of copyright if the copy had been produced in Canada by the person who produced it and if it had been imported into Canada under one of the acts targetted by 27(2)(a-c)

  • Protection accordé est limité à l'auteur en tant que l'auteur. L'espècese distingue des cas où l'oeuvre elle-même est mise en circulation.

  • Le test: Si un consomateur raisonnable qui effectue une opération commerciale ne croit pas que c'est l'oeuvre protégée par le droit d'auteur qu'il achète ou utilise, il est probable que l'oeuvre est simplement un élément accessoire du bien de consommation visé par l'opération.

Autres:

Pas nécessaire de décided sur l'abus de droits.



Application:

Oeuvres sont simples éléments accessoires des tablettes de chocolat. Oeuvre n'est pas important pour l'action que fait le consommateur. Oeuvre ne sert qu'à identigier la provenance de produit.


Abella+1: Est-ce que le titulaire d'une licence exclusive sur un droit d'auteur peut exercer les recours prévus par la Loi sur le DDA lorsuqe l'oeuvre protégée par le DDA figure sur l'étiquette d'un produit importé dans les circonstances envisagées au par 27(2)(e)? Oui.

  • Il n'y a aucune différence entre vendue et mise en circulation. Le terme vente doit être interprété dans une sens large.

  • Établir une exception pour des logos pour le motif qu'ils sont accessores va créer l'incertitude

  • This is a very statutory part of the law and protections offered by the legislature cannot be decreased by the courts. SCC has recognized that principles outside of the legislative texts, notably in civil liability, don't apply.

  • Licence confère droit même contre titulaire: language of Act is clear - allows licensees to exclude even holders of copyrights in s. 2.7, for example. Licenses allow for total or partial cession of rights, see s. 13(7) para 115.







S. 27(2) C/R Act

It is an infringement of copyright for any person to



  • (a) sell or rent out,

  • (b) distribute to such an extent as to affect prejudicially the owner of the copyright,

  • (c) by way of trade distribute, expose or offer for sale or rental, or exhibit in public,

  • (d) possess for the purpose of doing anything referred to in paragraphs (a) to (c), or

  • (e) import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c),

a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.





v – La copie privée

      1. Canadian Private Copying Collective v Canadian Storage Media Alliance (2004)


Jurisdiction

Federal Court of Appeal

Facts

  • The Copyright Board sets levies on blank audio recording media (like blank CDs). The Collective collects levies on the sale of these media and distributes them to companies which manage musical acts.

  • The Collective asked the Board to set a levy on MP3 players. It said yes, but it specified that the devices themselves were not within the statutory definition (s. 79 C/RA) of audio recording media. It instead said that the memory within MP3 players is within the definition. This makes it leviable.

  • Canadian Storage represents manufacturers and importers of blank media. It challenges the Board's decision (this is a case of judicial review)

Issues

  1. Is the permanently embedded or non-removable memory, incorporated into an MP3 player, an “audio recording medium” leviable under the C/RA?

  2. If the answer to (1) is yes, was the levy set by the Board within the boundaries of fairness?

Holding

  1. No

  2. Unecessary to answer

Reasoning

Is the memory an MP3 an audio recording medium?

  • S. 79. Audio recording medium = “a recording medium, regardles of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium.”

    • If a medium is blank and w/in this deinition, it can be levied.

  • The Board found that:

    • the memory in the devices, and the devices themselves, are used ordinarly by consumers

    • an audio recording medium (i.e. memory) incorporated into another device (ie an MP3 player) remains a medium.

      • This conclusion is supported by the “breadth” of s. 79's language, namely that it says “regardless of material form”

  • The FCA disagress:

    • the Board is not entitled to ignore the device in which memory is found. The device itself is not a recording medium and cannot be levied.

    • the Board's reasoning was flawed because it also recognized that the memory could not, considered independently, allow for a levy to be established. The Board was in de facto setting a levy on the deviceand drawing a false distinction between MP3 players and their memory

      • it is hard to understand how memory permanently incorporated into a device retains a distinct character

      • the memory's form does not change when it is in an MP3 player. Relying on the “regardless of form language” does not help avoid the oddity that this creates: if memory in MP3 players was leviable, then MP3 memory on other devices should also be leviable. (compare to the fact that the memory on a CD is not leviable. The CD itself is)

  • Analogy: Parliament chose to levy tapes but not tape recorders. MP3 players are like tape recorders.

    • MP3 players are not “media” like tapes and CDs. This means they are outside the s. 79 definition of what media are leviable.

  • Overall, the Board pursued an interpretation that only Parliament should specify as the law in Canada.

Comment

Not said explicitly in our excerpt, but I think that this might bring MP3 players within the exception for private copying.



F – Les moyens de défense et l’utilisation équitable





L’offre d’écoute préalable d’extraits d’œuvres est-elle une utilisation équitable à des fins de recherche qui ne viole pas le droit d’auteur?




Tarif homologué par la Commission du droit d’auteur, qui comprend parmi les utilisations ouvrant droit à rémunération la photocopie d’extraits de manuels scolaires destinés aux élèves de la maternelle à la 12e année — Ces photocopies constituent elles une utilisation équitable?









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