Canadian Lawyer

for SOCAN, says fair dealing cases are very fact specific. He notes to the extent there are previews associated with stream- ing use in the future, his clients will have to look carefully at whether the facts in those circumstances merit revisiting the issue. In the other fair dealing decision, Access Copyright, the issue was whether photocopies of short excerpts from text- books, made by teachers and distributed to students in elementary and secondary schools, qualified under the fair dealing exception and were therefore not subject to royalties. The Supreme Court was split, with the five-judge majority finding the Copyright Board' copies didn't fall under the exception was not in accordance with the test for fair dealing and was therefore unreasonable. The case was sent back to the board for reconsideration. Fasken's J. Aidan O'Neill says the deci- s conclusion the photo- of Canada, the SCC looked at whether royalties should be given for musical works that are contained in video games downloaded from the Internet. The court examined whether Internet deliv- ery of a permanent copy of a video game containing a musical work amounts to a communication under s. 3(1)(f) of the act. The five-judge majority noted the principle of technological neutrality, which requires the act to apply equally between traditional forms of media, such as video games bought in a store, and more technologically advanced media, such as downloading over the Internet. The majority found there is no practical difference between these forms. "The Internet is simply a technological that delivers a durable copy of the same work to the end user. taxi " Therefore, there sion has the potential to affect not only elementary and secondary schools, but post-secondary institutions. Although the decision has gone back to the board for reconsideration, he believes the SCC was sending a clear signal there has to be a more liberal approach to what constitutes fair dealing in an educational context. He notes that Bill C-11 now enumerates education as one of the pur- poses of fair dealing. O'Neill points out allowing photocop- ies of short excerpts to be exempt would bring Canada's copyright laws in better alignment with those in other countries, including the United States, Germany, and Australia. However, Chisick says a big misconception exists that all educa- tional photocopying is now free. He says once the Copyright Board has had an opportunity to reconsider the case, it may decide that some or all of the photocopy- ing constitutes fair dealing. But for the time being, nothing has really changed. "I think in general it would be a mistake for anyone to assume this question has been resolved conclusively. whether musical works downloaded and streamed from the Internet are subject to royalties. In the first, Entertainment Software Association Two of the other decisions addressed " it all starts somewhere www.ridoutmaybee.com Editors of the Canadian Patent Reporter Composers, Authors and Music Publishers v. Society of www.CANADIAN Lawyermag.com OCTO BER 2012 43 dout_CL_July_10.indd 1 6/17/10 3:10:05 PM Client's IP at Risk? Our bite is even worse than our roar. We are accomplished trial lawyers with years of study in science and engineering and we have the courtroom successes to prove it. It's treacherous out there, so if your client's IP is threatened – talk to us.

• Cover