Technological Neutrality Explained (& Applied to CBC v. SODRAC)

Abstract

The term “technological neutrality” surfaced in the Supreme Court’s 2012 copyright jurisprudence though no one, including the Federal Court of Appeal in CBC v. SODRAC , quite knows exactly what it means. This paper analyzes the principle of technological neutrality as comprising two dimensions: as non-discrimination in that new technologies are to be embraced under the Copyright Act for both copyright holders and users; and as non-interference insofar as sufficiently high thresholds of conduct or activity are required before copyright liability will attach to emerging technologies. It may surprise some that both iterations of this principle (though not so named) are well established in Supreme Court copyright jurisprudence. Once these dimensions are understood, we must then struggle with the issue of its application as a “principle” of copyright law. I argue that principles of law assist interpretation by providing direction in the face of ambiguous or absurd statutory meaning in unusual cases. In other words, principles rationalize the law in a way that strict construction of statutory meaning cannot always accomplish. Principles do not compel specific results but rather are a tool that might augur for a particular interpretation of statutory meaning in a given factual context in order to make the law coherent.The paper explores technological neutrality in the factual context of CBC v. SODRAC, tentatively scheduled for argument before the Supreme Court of Canada in March of 2015. After outlining the history of the case in the first part, the paper concludes with an application of the principle of technological neutrality, as non-interference, to the case. The only result coherent with the Supreme Court’s prior case law is to not treat non-usable or dormant incidental copies as reproductions under the Act. The status of permanent copies that serve a useful and identifiable purpose, e.g. archived copies, is less clear though it would not necessarily create incoherence in the law to recognize them as reproductions.