The Copyright Modernization Act, passed over a decade ago, marked a major shift in Canadian copyright law. On July 12, 2012, the Supreme Court of Canada released rulings on five key cases, argued in December 2011, which became collectively known as the "Copyright Pentalogy." This Act and these pivotal cases laid the groundwork for today’s Canadian copyright law, reshaping the balance between user rights and creator rights.  What follows is an overview of the changes that began in 2012, as well as an exploration of recent developments showing how these issues remain relevant today.

Downloading is Not a "Communication to the Public," but Streaming Is

In Entertainment Software Association v. SOCAN, the collective representing copyright holders of musical works sought to collect a licensing fee for downloaded video games containing music.[i] This additional fee for "communication to the public" was argued to be separate from the fee for the reproduction of the music used in the game. The Supreme Court took a technologically neutral stance, likening the Internet to a "technological taxi."[ii] Just as a taxi provides another way to deliver a durable copy of a work to a user, so too does downloading a file. This prevented copyright holders from collecting multiple revenue streams from the same activity.

However, online streaming of content, such as movies or music, was viewed differently by the Supreme Court. Streaming was held to be a repeated transmission of the same work to different customers.[iii] The Supreme Court's decision in Rogers Communications Inc. v. SOCAN granted SOCAN the right to a licensing fee for online streams.[iv] Together, these decisions brought some predictability to revenue streams for creative works offered online, establishing a framework that continues to apply in today’s digital content economy.

Today, with the massive rise in streaming, these distinctions still matter. Recent cases, such as Access Copyright v. York University (2021), have reignited debates around fair compensation and licensing frameworks as courts examine digital content in new contexts. This case illustrates that while the Copyright Pentalogy provided a foundation, digital distribution models continue to raise complex legal questions.

Fair Dealing Will Continue to Have a "Large and Liberal Interpretation"

The Supreme Court of Canada upheld a broad interpretation of "fair dealing" from CCH Canadian Ltd. v. Law Society of Upper Canada in two cases. Fair dealing provides exceptions to copyright infringement for purposes such as research, private study, criticism, review, and news reporting. The "analytical heavy hitting"[v] determines whether the dealing is fair by examining its purpose, character, amount, alternatives, nature, and effect.[vi]

In SOCAN v. Bell Canada, the Supreme Court lowered the threshold for research, deciding that online music previews could qualify as fair dealing because consumers use them to research potential purchases.[vii] The streamed previews were shorter and of reduced quality, making it unlikely they would replace original works.

In Alberta v. Access Copyright, the Court evaluated fair dealing from a student’s perspective, ruling that teachers providing photocopies to students for private study was fair dealing.[viii] Access Copyright’s argument for “instruction” instead of “private study” was rejected.

Today, the fair dealing principle remains a user right, yet *Access Copyright v. York University* (2021) shows that fair dealing still prompts debate in education, emphasizing that institutions must consider fair dealing in context and licensing requirements. This case highlights that as digital learning grows, courts face a complex balance between users’ rights and fair compensation for copyright holders.

Soundtracks Are Not "Sound Recordings" When Part of a Film or Television Program

This ruling reinforced the definition of "sound recording" in the Copyright Act.[x] Soundtracks embedded in films are excluded from eligibility for royalties as sound recordings. While straightforward in 2012, this ruling continues to impact royalty eligibility today, especially as digital platforms redefine what it means to “embed” music in creative works.

Conclusion

These decisions reflect a shift in the copyright balance in favor of users, with some reduction in rights and revenue potential for copyright holders. These rulings have provided creators and users with a framework for the digital age, even as digital media continues to raise new legal challenges. Recent cases like Access Copyright v. York University illustrate that while the Copyright Pentalogy set important precedents, Canadian copyright law must continually adapt to new digital realities.

Disclaimer: This article is intended solely for informational purposes and is not legal advice. Should any legal dispute arise, seek counsel from a qualified legal professional.

By Marco Figliomeni (with more recent updates from Vandana Taxali)

References

1. Entertainment Software Association v. SOCAN, 2012 SCC 34

2. Ibid at para 5.

3. Rogers Communications Inc. v. SOCAN, 2012 SCC 35

4. Ibid

5. SOCAN v. Bell Canada, 2012 SCC 36 at para 27

6. CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13

7. SOCAN v. Bell Canada, supra note 5 at para 22

8. Alberta (Education) v. Access Copyright, 2012 SCC 37

9. Copyright Act, RSC 1985, c C-42, s 2