Canada’s Supreme Court Rules “Technological Neutrality” as New Copyright Principle

The Canadian Supreme Court has made a ruling on various copyright issues. The Supreme Court of Canada has made “technological neutrality” a foundational principle of Canadian copyright and effectively adopted a fair use policy.

They have ruled that ISP will not be required to pay copyright fees for their subscribers download or preview music. They court also ruled that teachers will no longer pay fees associated with the photocopying of copyrighted materials for their students.

Some feel that the new technological neutrality principle may have a huge long term effects on Canadian copyright and will pose a threat to some copyright collective tariff proposals and to the newly enacted digital lock rules.

The technological neutrality principle is discussed in several cases, but gets its most important airing in the Entertainment Software Association of Canada v. SOCAN decision. The majority of the court states:

In our view, the Board’s conclusion that a separate, "communication" tariff applied to downloads of musical works violates the principle of technological neutrality, which requires that the Copyright Act apply equally between traditional and more technologically advanced forms of the same media: Robertson v. Thomson Corp., [2006] 2 S.C.R. 363, at para. 49.

The principle of technological neutrality is reflected in s. 3(1) of the Act, which describes a right to produce or reproduce a work "in any material form whatever".

In our view, there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet. The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user.

It seems in this case, that Canada is making strides ahead in the contentious copyright foray that has been plaguing many countries for some time. It will be noteworthy to see if a similar ruling makes its way into the American legal system.

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