Supreme Court Of Canada Affirms Principle Of Technological Neutrality In Canadian Copyright Law

On November 26, 2015, the Supreme Court of Canada issued a 7-2 split decision affirming that even incidental copies of a work made to facilitate broadcasting will engage the reproduction right and require a license. In reaching its decision, the Supreme Court highlighted the central role that the principle of technological neutrality plays in Canadian copyright law. The principle of technological neutrality recognizes that, absent parliamentary intent to the contrary, the Copyright Act should not be interpreted or applied to favour or discriminate against any particular form of technology. The goal of technological neutrality is to preserve the traditional balance between authors and users in the digital environment.

The decision under appeal. In CBC v SODRAC, 2015 SCC 57, the Canadian Broadcasting Corporation (CBC) disputed the finding of the Copyright Board and Federal Court of Appeal that the Copyright Act required a separate license for incidental copies of works made to facilitate broadcasting, and also disputed the valuation of the license fee.

The parties' positions. CBC is Canada's public television broadcaster. The Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) is a collective management society that grants licenses to reproduce, or make copies of, copyrighted musical and artistic works. SODRAC does not grant licenses for broadcasting, since broadcasting rights are managed by a separate collective society.

The parties agreed that a license is required during production when copyrighted musical works are synchronized with video to produce finished television programs and movies, called "master copies". In order to broadcast a master copy, CBC loads the master copy into its digital system and makes temporary copies for various purposes, such as for reformatting to meet technical requirements, editing for language or timing, and pre-screening. These copies are referred to as "broadcast-incidental" copies. The dispute involved SODRAC's claim that a separate license is required for the broadcast-incidental copies.

To support its claim for a license over broadcast-incidental copies, SODRAC relied upon a previous decision of the Supreme Court (Bishop v Stevens, [1990] 2 SCR 467), which held that temporary musical recordings made to facilitate a later broadcast are considered reproductions under the Copyright Act. In response, CBC argued that subsequent rulings by the Supreme Court favoured a...