Copyright - General. IMS Incorporated v. Toronto Regional Real Estate Board
In IMS Incorporated v. Toronto Regional Real Estate Board (Fed CA, 2023) the Federal Court of Appeal considers some basics of copyright law:
 The motion judge’s reasoning centred on the determination that the prothonotary’s order was premised on the conclusion that the works to which TRREB’s statement of claim applied were the same as those considered in TREB v. Canada. This determination implicitly involves several legal conclusions, namely that: (1) copyright pertains to works because it protects expression and not ideas; (2) copyright may extend to a compilation of materials drawn from other sources if it is sufficiently original; and (3) the assessment of whether a particular work meets the test for originality must be conducted with reference to the particular work in question. I see no error in any of the foregoing conclusions, which are all so well established as to be axiomatic.. York University v. The Canadian Copyright Licensing Agency (Access Copyright)
 In this regard, it is incontrovertible that copyright protects the expression used by an author or creator as opposed to facts or ideas. Copyright thus pertains to works and not to information: John S. McKeown, Fox on Canadian Law of Canadian and Industrial Designs, 4th ed. (Toronto: Thomson Reuters Canada, 2023) at §§ 1:1, 4:2 (Proview); Deeks v. Wells (1932), 1932 CanLII 315 (UK JCPC), , 1 D.L.R. 353 at 358, 1932 CarswellOnt 119 (Ont. P.C.) (WL Can); British Columbia Jockey Club v. Standen (1985), 1985 CanLII 591 (BC CA), 22 D.L.R. (4th) 467 at 469, 8 C.P.R. (3d) 283 (BCCA); Nautical Data International Inc. v. C-Map USA Inc., 2013 FCA 63, 110 C.P.R. (4th) 317 at paras. 11, 14, leave to appeal refused 2013 CarswellNat 2948, 464 N.R. 400 (note) (WL Can); Pyrrha Design Inc. v. Plum and Posey Inc., 2022 FCA 7, 190 C.P.R. (4th) 307 at para. 10.
 Under the Copyright Act, copyright subsists in works if they are original and if their authors or creators, at the time the works were created, were ordinarily resident in Canada or another country to which rights under the Act extend (Copyright Act, s. 5).
 In addition, it is indisputable that copyright may exist in compilations as contemplated by subsection 2.1(2) of the Copyright Act, which provides that:
"The mere fact that a work is included in a compilation does not increase, decrease or otherwise affect the protection conferred by this Act in respect of the copyright in the work or the moral rights in respect of the work. " Moreover, it is clear that compilations include works resulting from the arrangement or selection of data, as provided by the definition of "“compilation”" set out in section 2 of the Copyright Act, which states:
"L’incorporation d’une œuvre dans une compilation ne modifie pas la protection conférée par la présente loi à l’œuvre au titre du droit d’auteur ou des droits moraux."
"compilation means " In CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, 236 D.L.R. (4th) 395 [CCH], the Supreme Court of Canada held that the headnotes, case summaries, topical index and compilations of reported judicial decisions were all original works in which copyright subsists. The Supreme Court described the test for originality in paragraph 25 of CCH as follows:
"compilation"" Les œuvres résultant du choix ou de l’arrangement de tout ou partie d’œuvres littéraires, dramatiques, musicales ou artistiques ou de données. (compilation"") "
"(a) a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or of parts thereof, or "
"(b) a work resulting from the selection or arrangement of data; (""compilation)"
[…] an “original” work under the Copyright Act is one that originates from an author and is not copied from another work. That alone, however, is not sufficient to find that something is original. In addition, an original work must be the product of an author’s exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. While creative works will by definition be “original” and covered by copyright, creativity is not required to make a work “original”. In assessing the originality of the reported judicial decisions at issue in that case, the Supreme Court of Canada in CCH stated as follows at paragraphs 33 to 35:
The reported judicial decisions, when properly understood as a compilation of the headnote and the accompanying edited judicial reasons, are “original” works covered by copyright. Copyright protects originality of form or expression. A compilation takes existing material and casts it in a different form. The arranger does not have copyright in the individual components. However, the arranger may have copyright in the form represented by the compilation. “It is not the several components that are the subject of the copyright, but the over-all arrangement of them which the plaintiff through his industry has produced”: Slumber-Magic Adjustable Bed Co. v. Sleep-King Adjustable Bed Co. (1984), 1984 CanLII 54 (BC SC), 3 C.P.R. (3d) 81 (B.C.S.C.), at p. 84; see also Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.,  1 All E.R. 465 (H.L.), at p. 469.
The reported judicial decisions here at issue meet the test for originality. The authors have arranged the case summary, catchlines, case title, case information (the headnotes) and the judicial reasons in a specific manner. The arrangement of these different components requires the exercise of skill and judgment. The compilation, viewed globally, attracts copyright protection.
This said, the judicial reasons in and of themselves, without the headnotes, are not original works in which the publishers could claim copyright. The changes made to judicial reasons are relatively trivial; the publishers add only basic factual information about the date of the judgment, the court and the panel hearing the case, counsel for each party, lists of cases, statutes and parallel citations. The publishers also correct minor grammatical errors and spelling mistakes. Any skill and judgment that might be involved in making these minor changes and additions to the judicial reasons are too trivial to warrant copyright protection. The changes and additions are more properly characterized as a mere mechanical exercise. As such, the reported reasons, when disentangled from the rest of the compilation — namely the headnote — are not covered by copyright. It would not be copyright infringement for someone to reproduce only the judicial reasons.
In York University v. The Canadian Copyright Licensing Agency (Access Copyright) (Fed CA, 2020) the Federal Court of Appeal considered a copyright dispute between the Canadian Copyright Agency and York University, with several intervenors. In the course of the ruling the court sets out an extensive copyright law history at paras 50-194.
. Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association
In Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association (SCC, 2022) the Supreme Court of Canada sings the praises of 'technological neutrality' as one of the bases for the Copyright Act:
(2) Purpose of the Copyright Act
 The Board’s interpretation of s. 2.4(1.1) also undermines the purpose of the Copyright Act because it violates the principle of technological neutrality.
 The principle of technological neutrality holds that, absent parliamentary intent to the contrary, the Copyright Act should not be interpreted in a way that either favours or discriminates against any form of technology: CBC, at para. 66. Distributing functionally equivalent works through old or new technology should engage the same copyright interests: Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36,  2 S.C.R. 326, at para. 43; CBC, at para. 72. For example, purchasing an album online should engage the same copyright interests, and attract the same quantum of royalties, as purchasing an album in a bricks-and-mortar store since these methods of purchasing the copyrighted works are functionally equivalent. What matters is what the user receives, not how the user receives: ESA, at paras. 5-6 and 9; Rogers, at para. 29. In its summary to the CMA, which precedes the preamble, Parliament signalled its support for technological neutrality, by stating that the amendments were intended to “ensure that [the Copyright Act] remains technologically neutral”.
 The Board’s interpretation of s. 2.4(1.1) violates the principle of technological neutrality because it requires that users pay additional royalties to access works online. To illustrate, consider a retailer that allows customers to purchase a digital or physical copy of an album. Regardless of whether the work is sold digitally or physically, the author’s reproduction interest in s. 3(1) is engaged because the user receives a durable copy of the work: ESA, at para. 31. The author is therefore entitled to a reproduction royalty. But under the Board’s interpretation of s. 2.4(1.1), purchasing the album online would entitle the author to an additional royalty — a performance royalty for making the work available for online purchase. Similarly, streaming the album online would require paying a “making available performance” royalty and a “streaming performance” royalty. But playing that same album on the radio would only require paying one performance royalty. Requiring that users pay additional royalties based solely on the mode of the work’s distribution violates the principle of technological neutrality.
 The appellants concede that the Board’s interpretation of s. 2.4(1.1) is not technologically neutral. They submit, however, that Parliament intended to derogate from the principle by passing s. 2.4(1.1). Because works can only be “made available” online — since there is no bricks-and-mortar way for the public to access a work at a time and place of their choosing — the appellants submit that Parliament must have intended to impose additional royalties on works distributed online.
 This is entirely unpersuasive. Clear legislative intent would be needed to derogate from the principle of technological neutrality given its central importance to the scheme of the Copyright Act. To appreciate why, it is necessary to situate the principle within the Act.
 Copyright law does not exist solely for the benefit of authors: York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32, at paras. 90-91. Its overarching purpose is to balance users’ and authors’ rights. It does this by securing just rewards for authors while facilitating “public access to and dissemination of artistic and intellectual works, which enrich society and often provide users with the tools and inspiration to generate works of their own”: Access Copyright, at para. 92; see also Théberge, at paras. 30-31.
 The Copyright Act uses various tools to achieve this balance. Fair dealing, for example, promotes this balance by allowing “users to engage in some activities that might otherwise amount to copyright infringement”: Bell, at para. 11; see also Access Copyright, at para. 90. Similarly, the idea/expression dichotomy protects this balance by extending copyright protection to only original artistic expressions, not original ideas. This ensures that the public can freely use new ideas to inspire their own original works: CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13,  1 S.C.R. 339, at para. 8; A. Drassinower, “Copyright Is Not About Copying” (2012), 125 Harv. L. Rev. F. 108, at p. 111.
 Like fair dealing and the idea/expression dichotomy, the principle of technological neutrality is a tool for balancing users’ and authors’ rights. It ensures that authors retain the same rights over their works regardless of the technological means used to distribute those works. If the Copyright Act entitles authors to receive a certain royalty when their work is reproduced or performed offline, technological neutrality preserves an author’s right to receive that same royalty when their work is reproduced or performed online. As a corollary, it also protects users by preventing authors from extracting more royalties merely because their work is reproduced or performed online. As Professor Carys J. Craig explains in “Technological Neutrality: (Pre)Serving the Purposes of Copyright Law”, in M. Geist, ed., The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013), 271,
[t]his principled recognition of copyright as requiring a sensitive public policy balance, rather than simply the protection of a private property right, has had a marked impact on the landscape of Canadian copyright law. If copyright in general requires this balance, then it must surely follow that copyright in the digital era requires the preservation of this balance, which must mean that the law should have the same effect (produce a similar balance of rights and interests) whether applied offline or online. [Emphasis in original; p. 292.] With this context in mind, I am not persuaded that, in adopting s. 2.4(1.1), Parliament intended to derogate from the principle of technological neutrality. The principle of technological neutrality is designed to operate precisely in situations like the present case, where a novel technology emerges that has no clear traditional equivalent. In those circumstances, courts must look at what that new technology does to the substance of the work by examining which, if any, of the copyright interests in s. 3(1) are engaged by this new method of distributing a work. If that new technology gives users durable copies of a work, the author’s reproduction right is engaged. If the new technology gives users impermanent access to the work, the author’s performance right is engaged. What matters is what the user receives, not how the user receives it.
 With that said, copyright is a creature of statute. Parliament can therefore always choose to derogate from the principle of technological neutrality: Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43,  3 S.C.R. 418, at para. 40. But derogating from this principle means significantly altering the balance between users’ and authors’ rights that has been foundational to the Copyright Act for decades: Keatley, at paras. 43-44. In this case, it would tilt the balance significantly in favour of authors. Users would face increased costs and be penalized for using certain new and improved technologies.
 Thus, courts should not conclude that Parliament intended to derogate from the principle of technological neutrality unless there is strong evidence that this was Parliament’s intent: see, for example, CBC, at paras. 50-51. That is not the case here. As discussed, the text of s. 2.4(1.1) and its placement in the Copyright Act does not support the view that Parliament wanted to make downloads and streams subject to two royalties. Further, as I will discuss next, giving effect to the WIPO Copyright Treaty does not demand this interpretation.
 Since there is no persuasive basis for concluding that Parliament intended to derogate from the principle of technological neutrality, s. 2.4(1.1) should be interpreted in a way that is technologically neutral: reproducing or performing a work online or offline should engage the same copyright interests and require the same royalties.