Supreme Court of Canada to Announce whether leave to be granted in CSI "Authorization" case

I was speculating about five weeks ago about whether the Supreme Court of Canada (SCC) would grant leave to appeal in this case:

CMRRA-SODRAC Inc. (CSI) v. SOCAN, Sirius, Canadian Satellite Radio Inc., et al. (SCC no. 34092).


This involves SOCAN and CSI, and the issue of the territorial scope of the Copyright Act, and consideration of what constitutes the “authorization” of a reproduction of a work. At the current time, there is no summary on the SCC website.The Court will announce this Thursday Oct 20 at 9:45 AM whether it will grant leave to appeal in this case. 

If leave is granted, it will be interesting to see if this case is added to the already uniquely busy schedule of five (5) copyright case scheduled for two days, namely December 6 and 7, 2011. The only obvious aspect in common in all five of these cases is that they emanate from the Copyright Board.


The SCC can compress schedules and abridge normal time limits. However,  at this point, such an abridgment would require compressing a series of steps that normally takes about six months into less than two months. 


HK

Secondary Liability v. Authorization - Terminology Matters

There will likely be another round of confusing use of terminology involving "secondary liability" and "authorization" following the landmark iiNet decision of February 4, 2010 decision in Oz.

In 2005, I was asked to co-author an amicus brief on behalf of Sharman in the US Supreme Court Grokster case. In that brief, we stated:

While the legal systems of many countries are capable of dealing with the issue of secondary liability in copyright law, there is no consistent pattern in terms of doctrine or even result as to how this is done. The word “authorize” is not used in international law in any sense relevant to the IRO’s brief or to the issues at hand, particularly regarding secondary infringement. Moreover, as will be seen below, the word “authorize” is used in one sense in the United States, in another very different sense in the international treaties and the EU, and in yet a third very different sense in the Commonwealth countries (wherein the term has yielded conflicting results at the highest judicial level).

The brief looked at the state of the law in early 2005 on "secondary liability" and "authorization" in the USA, UK, Canada and Australia. It is useful in clarifying the difference in the concepts and terminology.

I'm looking forward to reading in detail exactly what Judge Cowdroy has to contribute to our understanding of "authorization." There have been some significant divergences in the past between the Canadian and Australian approach on this issue. Let's see where things stand now.

BTW, another aspect of terminology that can sometimes be confusing in this context of comparative terminology is that of "secondary infringement." In Canada, this means the liability set forth in s. 27(2) of the Act that deals with such matters as sale, distribution, and importation. This is the section that figured prominently in the Supreme Court's Kraft decision on parallel imports (in which I was involved) and the SCC's CCH decision, in which the Court famously held in the context of the unsuccessful claim against the Great Library for selling copies of the publishers' works that "Absent primary infringement, there can be no secondary infringement."

HK