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Supreme Court of Canada Grants Leave in Copyright Technological Neutrality Case

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Canadian Broadcasting Corporation

On September 9, 2014, the Supreme Court of Canada granted the Canadian Broadcasting Corporation’s application for leave to appeal a decision of the Federal Court of Appeal which dealt with the application of technological neutrality to copyright licences in the broadcasting industry. The Supreme Court grants leave to appeal in only 10% of the cases brought before it for permission to appeal. CBC was represented by a team of lawyers from Fasken's Montreal office, who were successful in obtaining leave despite the large number of recent copyright decisions by the Supreme Court, including the 2012 "Copyright Pentalogy". The context of the case was a disagreement between CBC and SODRAC (the latter being a Québec-based collective society) over whether CBC should pay additional copyright royalties as a result of CBC's adoption of digital broadcasting technology. SODRAC's position was that because digitial broadcasting involved the creation of more copies than analog broadcasting, CBC should pay higher royalties. CBC's position was that since the underlying economic activity (i.e. broadcasting) had not changed, its royalty payments should not be affected by the adoption of new technologies. Disputed licence fees amount to millions of dollars. The core issues raised by CBC in its application for leave to appeal were: (1) whether the Federal Court of Appeal erred by refusing to apply the principle of technological neutrality to the Copyright Act; (2) whether a non-technologically neutral application of the Copyright Act can achieve the proper balance between the rights of copyright owners and users; (3) and whether the Federal Court of Appeal had created a new exception to the doctrine of stare decisis by refusing to following recent Supreme Court decisions on the basis that these decisions provided insufficient guidance to lower courts. Fasken Martineau represented Canadian Broadcasting Corporation. The team included Marek Nitoslawski, Joanie Lapalme, Michael Shortt, and Cindy Gabriel.

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