By Richard Stobbe
The CBC, like all television broadcasters, makes copies of various works – such as music and other content – in the course of preparing programs for broadcast. So-called “synchronization copies” are used to add musical works to a program. Then a “master copy” is made, when the music synchronization is complete. The master copy of the completed program is loaded for broadcast, and various internal copies are made of the master copy. These copies are called “broadcast‑incidental copies”. In a nutshell, these are copies made in the process of production of a program, as distinct from the broadcast of the program.
In one of the more esoteric copyright topics to make it to the Supreme Court, the decision in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), examined whether these “broadcast‑incidental copies” require a separate license because they would constitute an infringement of copyright if made without consent of the copyright owner. Or, rather, are they caught within the standard broadcast license that CBC would have negotiated with rightsholders, such as SODRAC, and thus they wouldn’t require a separate license… Still with me?
The Court decided that “broadcast‑incidental copying” engages the reproduction right in Section 3 of the Copyright Act. These so-called “ephemeral copies” are not exempted by ss. 30.8 and 30.9 of the Act. The Court noted that “While balance between user and right‑holder interests and technological neutrality are central to Canadian copyright law, they cannot change the express terms of the Act.” Importantly, the Court also cautioned that “The principle of technological neutrality recognizes that, absent parliamentary intent to the contrary, the Act should not be interpreted or applied to favour or discriminate against any particular form of technology.”
In the end the decision was sent back down to the Copyright Board for reconsideration of valuation of the license in accordance with the principles of technological neutrality and the balance between balance between user and right‑holder interests.
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