Courts and Copyright: Some Thoughts on Standard of Review
Paul Daly, "Courts and Copyright: Some Thoughts on Standard of Review" in Michael Geist ed., The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law , University of Ottawa Press, Ottawa, 2013
In doing so, it also introduced an innovation to the law of judicial review. In Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, a majority of the Court held that, even though the Copyright Board was interpreting its own statute (typically, a situation in which deference is appropriate), no deference would be paid to its interpretation of the scope of copyright.
For the majority, Justice Rothstein explained that the Copyright Board and the Federal Court of Canada have concurrent jurisdiction to deal with issues of copyright law. As the Copyright Board does not operate in a “discrete and specialized” administrative regime, deference to its decisions on matters of interpretation would be inappropriate. I argue that the new “shared jurisdiction” exception will lead to confusion. Clever counsel will doubtless try to stretch the Court’s logic to other areas, such as competition and securities regulation. I further suggest that it was unnecessary to develop this exception, because the Court already possesses the doctrinal means of addressing the problems by which it was concerned.
My primary focus is thus relatively narrow, confined to technical questions of administrative law. However, I adopt a broader lens towards the end of this paper and suggest that Canadian courts ought to be more willing to accord deference to the decisions of the Copyright Board. Courts do not, in short, have the copyright on wisdom about intellectual property law.
I then conclude with some thoughts on the application of the general principles of administrative law in one of the other cases in the pentalogy, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). The serious disagreement between the majority and minority judges in that case casts light on an important issue in administrative law, the characterization of administrative decisions
Table of contents
Standard of Review and the Courts
1. Of Reasonableness, Fairness and the Public Interest: Judicial Review of Copyright Board Decisions in Canada’s Copyright Pentalogy – Graham Reynolds
2. Courts and Copyright: Some Thoughts on Standard of Review – Paul Daly
3. The Context of the Supreme Court’s Copyright Cases – Margaret Ann Wilkinson
4. Fair Use 2.0: The Rebirth of Fair Dealing in Canada – Ariel Katz
5. Fairness Found: How Canada Quietly Shifted from Fair Dealing to Fair Use – Michael Geist
6. The Arithmetic of Fair Dealing at the Supreme Court of Canada – Giuseppina D’Agostino
7. Fair Dealing Practices in the Post-Secondary Education Sector after the Pentalogy – Samuel E. Trosow
8. Fairness of Use: Different Journeys – Meera Nair
9. Technological Neutrality: (Pre)Serving the Purposes of Copyright Law – Carys J. Craig
10. Technological Neutrality in Canadian Copyright Law – Gregory R. Hagen
Copyright Collective Management
11. Copyright Royalty Stacking – Jeremy de Beer
12. The Internet Taxi: Collective Management of Copyright and the Making Available Right, after the Pentalogy – Daniel Gervais
The Scope of Copyright
13. Righting a Right: Entertainment Software Association v. SOCAN and the Exclusive Rights of Copyright for Works – Elizabeth F. Judge
14. Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law – Teresa Scassa
This content has been updated on August 23, 2014 at 12:17.