Canadian Lawyer

LEGAL REPORT/INTELLECTUAL PROPERTY Shaky ground for creators The Supreme Court of Canda's pentalogy of copyright decisions make it clear this country needs more liberal copyright laws. BY SIOBHAN MCCLELLAND sumer practices. He says both Parliament and the Supreme Court have been careful to ensure there' tives and copyright protections. While he believes the courts will test the limits of creators' and users' rights over the next few years, the balance has shifted toward users. "I think we see a much clearer intent or objective of balancing the rights of con- sumers to access copyright works with the rights of creators and owners." The widening of users' s a balance between incen- it comes to collecting royalties. In five decisions released July 12, the Supreme Court of Canada made it clear there needs to be a broader, more liberal interpretation of copyright law to allow users more access to artistic work, with- out paying royalties. These decisions arrive as Bill C-11, C hanges in copyright law are leading to more pro- tections for users, leaving creators of artistic works on shaky ground when parody, and satire as purposes under the fair dealing exceptions. The expansion of the copyright exceptions and decisions of the Supreme Court are positive steps for users who want to obtain artistic including allowing education, works without paying royalties, but bad news for creators of these works, who are already struggling with decreasing com- pensation as users turn to the Internet to obtain these works. "I think it's quite clear that the most apparent in Society of Composers, Authors and Music Publishers of Canada v. Bell Canada and Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), the two decisions on the fair dealing provisions under s. 29 of the Copyright Act. The issue in SOCAN v. Bell was whether previews of musi- cal works a customer listens to before purchasing music online are subject to royalties. For the previews not to infringe copyright, their use has to be "fair deal- ing" for the purpose of research. The two-part test for fair dealing was rights is the Copyright Modernization Act, comes into force this fall. It allows for more exceptions to copyright infringe- ment, Supreme Court has continued in its evo- lution towards a much more user-focused orientation to the law of copyright," says Casey Chisick, a partner with Cassels Brock & Blackwell LLP who acted as counsel for an appellant and an interven- er in the cases. He says that since 2002, the traditional approach of copyright law as primarily for the protection of authors and rights holders has been shifting in the direction of the rights of users. Jay Kerr-Wilson, counsel for some Internet service providers and a partner at Fasken Martineau DuMoulin LLP, agrees that copyright law is becoming less restric- tive in terms of individual uses and con- 42 OCTO BER 2012 www.CANADIAN Lawyermag.com set out in CCH Canadian Ltd. v. Law Society of Upper Canada. First, courts must determine whether the dealing is for either research or private study. Second, the courts look at the six factors set out in CCH to assess whether the dealing is "fair. character, and amount of the dealing; the existence of any alternatives; the nature of the work; and the effect of the dealing on the work. The top court found the pre- views were provided for research purpos- es, noting "research" is to be given a large and liberal interpretation. In applying the CCH factors, the court found previews satisfy the requirements of fair dealing. Gilles Daigle, a partner with Gowling Lafleur Henderson LLP who was counsel " Those factors are the purpose, alexi vella

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