Revolution in Canadian Copyright Law?

Abstract

In Canada, judicial and legislative developments in 2004 with respect to copyright have, in many respects, constituted a virtual revolution. The Supreme Court of Canada (SCC) released two major copyright cases in rapid succession: CCH Canadian Ltd. v. Law Society of Upper Canada (SCC, decision of 4 March 2004, CRI 2004, p. 82 with remarks by Lucas; 2004 SCC 13 [CCH]), which examined the scope of originality, authorization and fair dealing; and Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers (SCC, decision of 30 June 2004, CRI 2005, p. 56, in this issue; 2004 SCC 45 [SOCAN]), which dealt with the application of the Canadian Copyright Act (R.S.C. 1985, c. C-42) to Internet transactions, the concept of authorization in this context, and the liability of ISPs (Internet Service Providers). The impact of these decisions lead to the highly controversial case of BMG Canada Inc. v. John Doe (Federal Court, decision of 31 March 2004, CRI 2004, p. 87 with remarks by Nitoslawski; 2004 FC 488 [BMG Canada]), in which the Federal Court held on the basis of CCH that downloading music files via peer-to-peer networks did not constitute copyright infringement. This article reviews the main themes (II.) of these cases (III.) and explores the significant expansion of user rights at the expense of author rights they have reflected. Clearly, if there is a revolution occurring in the courts, it is not one in which authors are winning (IV.).