[d@DCC] Supreme court cases: will we get clarity, or more confusion?

From: Russell McOrmond <russell _-at-_ flora.ca>
To: "General Copyright Discussions \(questions, organizing, etc\)" <discuss (at) list.digital-copyright.ca>
Date: Sun, 02 Oct 2011 09:41:48 -0400
References: <20111001021425.GA481@foursquare.net> <03A97BCB-D8C7-427E-8EF4-E63D05030C07@gmail.com> <4E875511.5000208@flora.ca> <C8C0329C-BE1E-4095-8746-0B05F22019D9@gmail.com>

Keith,
(or others in the list)

   Have you been following the various copyright related cases in front 
of the supreme court?  I haven't seen a complete list, but know that it 
grew from 5 cases recently to a few more.   Would love to hear 
summaries, including how people wish they would go (what would make for 
good policy, separate from what they think the SCC might rule based on 
existing law).


   Few I've heard of (and my attempt to find the right case in the SCC 
site -- I may have got these wrong)


   Alberta (Minister of Education) v. Canadian Copyright Licensing 
Agency (Access Copyright)
   http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=33888
    - Deals with "fair dealing"


   Rogers Communications Inc. et al. v. Society of Composers, Authors 
and Music Publishers of Canada
   http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=33922
    - Back to the Tariff 22 stuff, and communication to the public of music

   Entertainment Software Assn. v. Society of Composers, Authors and 
Music Publishers of Canada
   http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=33921
     - online distribution of video games that contain background music. 
  This one should be interesting, as SOCAN is trying to treat the online 
distribution of software containing music the same as a radio 
communication of music.  It's IMHO an insane idea, but one where I 
wouldn't want to guess where the SCC will go on it.  This is one where 
modernisation of the act itself may be needed to create better 
definitions around video games/etc.  Waiting for a ruling on this, and 
determining what the right outcome should have been, may be something 
that will delay C-11.   Hopefully they will do this given it may be 
decades before we see another substantive copyright bill because 
governments like to do ugly massive omnibus bills and then pretend the 
issue goes away..


   Society of Composers, Authors and Music Publishers of Canada v. Bell 
Canada
   http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=33800
   - Are previews part of fair dealing, or something that will be tariff'd


   Re: Sound v. Motion Picture Theatre Associations of Canada
   http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=34210
   - Similar in some ways to the video game case, where the soundtrack 
is being treated as separate from the movie by a music collective.  I 
thought part of the authorising the music to be added to the 
movie/game/etc was that the music would then be considered part of the 
whole work (and subject to the rules of a movie), and that the music 
wouldn't be considered separately this way.  Unfortunately the act 
defines a sound recording to exclude "any soundtrack of a 
cinematographic work where it accompanies the cinematographic work", but 
doesn't clarify whether a video game is simply an interactive 
cinematographic work.



   My hope is that these cases will provide clarity to a question I've 
had for years about what P2P or other online distribution of music is.


http://www.flora.ca/documents/p2p-legal-theories.html

Short-form:

"Theory 1: P2P as a "communication by telecommunications", where a copy 
is kept by recipient."

"Theory 2: P2P as simple "copying", similar to if physical media had 
been loaned."

   The music industry would fair better if theory 1 was adopted, while 
the record labels would remain in control if theory 2 were adopted.  The 
labels have been quite successful in lobbying for theory 2, and their 
ongoing ability to pick-pocket composers and musicians.


   The worst case scenario, and something that may be part of these 
cases, is that it is both -- meaning that there is multiple 
overlapping-yet-conflicting legal theories that will all be demanding 
permission and/or payment for the same activity.


-- 
  Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
  Please help us tell the Canadian Parliament to protect our property
  rights as owners of Information Technology. Sign the petition!
  http://fix.c11.ca/petition/ict/

  "The government, lobbied by legacy copyright holders and hardware
   manufacturers, can pry my camcorder, computer, home theatre, or
   portable media player from my cold dead hands!"
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