The Honourable Mr. Marshall Rothstein is a tough act to follow, especially when recounting his own majority decision. At the recent UNPACK SODRAC: Technological Change and Copyright Tariffs after CBC v SODRAC (SCC 2015) symposium, the former Supreme Court justice stood firmly by his decision in the case during his keynote address. The panelists during the event had more mixed feelings about CBC v SODRAC [SODRAC].
The second panel of the day, titled “Reproduction Rights”, featured a particularly lively discussion of the implications of the decision for reproduction in the digital era. The panel, chaired by Professor Ariel Katz, included participants from a range of interested groups: Veronica Syrtash (VP of Legal and Business Affairs at CMRRA), Professor Jeremy de Beer (University of Ottawa), Intellectual Property lawyer Mark Hayes (eLaw LLP), and Professor Bita Amani (Queen’s University).
Professor Katz organized the discussion by providing a brief introduction, asking the panelists for their interpretations of the background to the decision, and then moving on to a more in-depth conversation about the matter of reproduction rights.
Following this, the panelists were asked to provide some background to the decision. Hayes noted his belief that the decision was a “good compromise”. He then spoke about the judicial history of the case, particularly SODRAC‘s decision to separate their synchronization licensing scheme to garner additional payments, which was noted by Justice Abella in dissent. Syrtash then provided the licensing-side perspective of the issue. She agreed with the majority decision that there is no statutory basis for reading down the meaning of reproduction in the Copyright Act [the “Act“].
Professor Amani took a more contrarian view. She was particularly concerned about the implication for the technological neutrality principle. According to Professor Amani, the decision by the majority is likely to contribute to a greater degree of uncertainty about how the court will apply the principle in future. Moreover, she pointed out that there exists no statutory basis for using the principle in the context of valuation – meaning that none of the Copyright legislation tells us to – or how to – apply technological neutrality when determining the value of a given copy for the purpose of charging tariffs. Yet, based on this case, it appears that technological neutrality now applies to both the interpretation and the application of the Copyright Act. In that light, she also argues that the Théberge holding that a multiplication is a copy is overbroad and overly inclusive, especially in the context of ephemeral copies.
Professor de Beer, who acted for CIPPIC as an intervener in SODRAC, argued that there is no “ordinary meaning” to section 3(1) of the Act (pointing out, for instance, that “mechanical” is an antiquated term) and there is more ambiguity in the Act than the majority considered. He also argued that SODRAC is less a shift in Copyright jurisprudence than an outlier case. He stated that it is a disruptive case and may have the effect of complicating valuations in tariff hearings and proceedings before the Copyright Board. In response, Syrtash was adamant that the decision is not an outlier, particularly given the consistency with which the same justices have been in the majority in related copyright cases.
The panelists then debated the decision’s potential implications for reproduction rights. Hayes raised some “real world” implications. He noted that in practice it would be very difficult to deal with situations where certain copies have value while others do not. He discussed how it is a positive that collectives who are collecting tariffs will have to demonstrate how the additional copies made in the processes of a new technology add value for the user. In essence, those seeking additional tariffs will have to show that the user gained efficiencies and thereby value by making additional copies (necessitated by digital technologies, for example).
At this point, Professor Katz wondered aloud if the SODRAC holding is limited to broadcasters’ reproductions. This spurred a debate around whether every copy is in fact a copy. Syrtash argued that, with exceptions and within context, “a copy is a copy is a copy” and the value of a copy is never zero. Professor de Beer then worried about the implications of this view. He argued that view is too simplistic and noted that the majority confined its remarks to the broadcast context. Hayes said that it is important to realize that the ruling applies to both the Copyright Board and to the courts. As a result, both bodies will have to consider it when valuing a given copy in a given case. Hayes pointed out that as a result of this decision, courts will not be able to value a copy, even an ephemeral one, at no value – a court will have to give a copy at least a minimum value. This is different than for the Board, which can value a tariff at zero.
The final portion of the discussion concerned the issue of reproduction valuations in the digital era. Amani criticized the view that all copies have value (not everything worth copying is worth protecting). Syrtash, on the other hand, emphasized that the Supreme Court said these copies matter and, accordingly, we cannot ignore any potential value to the user in increased efficiency. Hayes countered that increased efficiency is not necessarily of great value if it is merely the industry standard (i.e. switching to digital technology).
The energetic debate could have gone on at length absent the imposed time limits, but wrapped up here with a few audience questions. Overall, what became clear throughout this and other panels during the symposium was that the implications of CBC v. SODRAC remain somewhat unclear both in practice and in academia. It is easy to see why the Supreme Court’s decision was controversial, with the questions put to this panel being only a sample of the important debates to be unpacked.
Sebastian Beck-Watt is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School
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