The Context of the Supreme Court’s Copyright Cases

In the summer of 2012, the Supreme Court of Canada created history by simultaneously releasing five copyright judgments: Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada [ESA],[1] Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada [Rogers],[2] Society of Composers, Authors and Music Publishers of Canada v Bell Canada [Bell],[3] Alberta (Education) v Canadian Copyright Licensing Agency [Alberta (Education)],[4] and Re:Sound v Motion Picture Theatre Associations of Canada [Re:Sound].[5]

This historic event reverberated in a number of domains.

These five judgments mark the final moments before a long anticipated major reform in Canada’s copyright law: on 12 July 2012, when the five judgments were released, the Copyright Modernization Act had been passed by Parliament but had not been declared in force.[6]

In addition to marking the end of one version of the Copyright Act, in the context of intellectual property development in Canada, the “pentalogy” instantly enormously multiplied the total jurisprudence from Canada’s highest court that bears on copyright. Indeed, between the time McLachlin J became Chief Justice of the Supreme Court in 2000 and the release of the pentalogy, there had only been five copyright judgments from the Court:[7] Théberge v Galérie d’Art du Petit Champlain [Théberge],[8] CCH Canadian Ltd v Law Society of Upper Canada [CCH],[9] Society of Composers, Authors, and Music Publishers of Canada v Canadian Association of Internet Providers [SOCAN v CAIP],[10] Robertson v Thomson Corp [Robertson],[11] and Euro-Excellence Inc. v Kraft Canada Inc. [Toblerone].[12] Taken together, these ten cases represent a greater volume of interest from the Supreme Court in copyright than has been evinced at any time since it became Canada’s final appeal court.[13] For example, in Ian Bushnell’s history of the Federal Court, spanning 1875 to 1992, there is mention of only one intellectual property case being appealed to the Supreme Court,[14] a trademark case, Benson & Hedges v St. Regis Tobacco Corporation.[15] Others did reach the Supreme Court but did not merit discussion in Bushnell’s history: for example, in copyright, on appeal from the Exchequer Court (predecessor to the Federal Court), the Supreme Court decided Cuisenaire v South West Imports Ltd in 1969—but consideration of copyright by the Supreme Court under previous Chief Justices has definitely been infrequent.[16] One reason for this relative paucity of copyright cases in the Supreme Court may be the strong contribution to intellectual property jurisprudence between 1964 and 1980, which is universally acknowledged as being made by Jackett CJ of the Federal Court.[17]

But, beyond the context of copyright jurisprudence, the release of these five copyright decisions together was a landmark in the history of Supreme Court jurisprudence in general. This chapter will focus on the historic copyright “pentalogy” but, rather than considering these judgments primarily in light of Canadian copyright jurisprudence— or, indeed, in light of intellectual property jurisprudence more broadly—the discussion will focus on these five judgments in the context of Canada’s Supreme Court jurisprudence generally…