Supreme Court strikes down copyright fees
A pedestrian walks past the Supreme Court of Canada in Ottawa. (The Canadian Press/Sean Kilpatrick)
The Canadian Press
Published Thursday, July 12, 2012 5:36AM EDT
Last Updated Thursday, July 12, 2012 1:42PM EDT
OTTAWA -- The Supreme Court of Canada has reined in the application of copyright fees levied on music, movies, video games and printed materials that people download and copy in different ways.
The top court ruled Thursday on five different cases that touched on tariffs set by the Copyright Board.
All the cases pitted the societies that collect fees on behalf of creators against the distributors or users of the copyrighted materials.
One of the biggest cases involved ministers of education and school boards from across the country versus Access Copyright -- the body that collects royalty fees for publishers. The two sides had butted heads at the Copyright Board over how much schools had to pay for the right to photocopy parts of books for students.
When students copy material for private study or research, it's considered "fair dealing" under the Copyright Act and doesn't trigger fees.
In a 5-4 decision, the Court found that the Copyright Board had incorrectly treated teachers differently for photocopying materials for their students, "driving an artificial wedge into these unified purposes of instruction and research-private study."
"There is no separate purpose on the part of the teachers in this case," wrote Justice Louis LeBel. "They have no ulterior or commercial motive when providing copies to students."
LeBel also wrote that there is no evidence of a link between photocopying short excerpts of a book and a decline in textbook sales.
The Copyright Board will have the examine the fees again in light of the decision, but it is likely to have a positive financial impact on educational institutions that pay millions annually to publishers through Access Copyright.
Already, some universities have split from Access Copyright because of rising fees, deciding to manage their own payment of copyright tariffs.
The four other cases involved the layering on of fees for works based on the way they are transmitted to the consumer.
The court decided unanimously that there should be no copyright fees levied on cable companies or other digital providers when music is downloaded, but that artists should be compensated when it is streamed online.
That decision was linked to another that dealt with software companies that sell their video games online. The court ruled 5-4 that those firms shouldn't pay royalties for the music that's featured in those video games every time a consumer downloads it online.
"There is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet," wrote Justices Rosalie Abella and Michael Moldaver.
"ESA (Entertainment Software Association) has already paid reproduction royalties to the copyright owners for the video games."
Finally, cable and other Internet providers should not have to pay fees when people download previews of songs. The court found unanimously that those previews constituted research and therefore did not infringe the Copyright Act.
"Unless a potential consumer can locate and identify the work he or she wants to buy, the work will not be disseminated," Abella wrote.
"Short, low-quality previews do not compete with, or adversely affect, the downloading of the works themselves. Instead, their effect is to increase the sale and dissemination of copyrighted musical works."