The Supreme Court granted leave to appeal on September 4, 2014 in another copyright case, Canadian Broadcasting Corporation / Société Radio-Canada v. SODRAC 2003 Inc. The appeal is from the decision of the Federal Court of Appeal which ruled that broadcasters must pay royalties for ephemeral recordings in accordance with the 1990 decision of the Supreme Court in Bishop v. Stevens.

In the Court of Appeal, CBC argued that Bishop v Stevens was no longer good law, having been overruled by a series of decisions of the Court which had, in various circumstances, made references to the principle of technological neutrality in construing the Copyright Act. CBC particularly relied on the decision of the Supreme Court in ESA v SOCAN which it contended had fundamentally changed the well established law that broadcasters payment of royalties to communicate works to the public did not affect their obligations to also pay royalties in respect of reproductions made to effect the communications.

The Court of Appeal rejected CBC’s arguments holding that the principle of technological neutrality could not override the clear language of the Act which conferred the exclusive right of reproduction on owners of music works. The Court of Appeal after referring to several passages from the ESA case stated:

In my view, this passage reaffirms the fundamental distinction between reproduction and performance (communication to the public by telecommunication) that the Court articulated in Bishop v. Stevens. Nothing in this passage, or elsewhere in ESA, would authorize the Board to create a category of reproductions or copies which, by their association with broadcasting, would cease to be protected by the Act. ESA did not explicitly, or by necessary implication, overrule Bishop v. Stevens.

As a result, I am unable to accept the Broadcasters’ argument that the comments about technological neutrality in ESA have changed the legal landscape to the point where the Board erred in finding that incidental copies are protected by copyright. The Broadcasters’ argument with respect to technological neutrality fails.

Interestingly, the panel of three Justices who granted leave to appeal were Justices Moldaver and Abella who wrote the majority opinion in the ESA case and Justice Rothstein who wrote the minority opinion.

First published on barrysookman.com.