Courts and Copyright: Some Thoughts on Standard of Review


In June 2012, the Supreme Court of Canada decided five important copyright cases.

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

Introduction by Michael Geist

Standard of Review and the Courts

1. Of Reasonableness, Fairness and the Public Interest: Judicial Review of Copyright Board Decisions in Canada’s Copyright PentalogyGraham Reynolds

2. Courts and Copyright: Some Thoughts on Standard of ReviewPaul Daly

3. The Context of the Supreme Court’s Copyright CasesMargaret Ann Wilkinson

Fair Dealing

4. Fair Use 2.0: The Rebirth of Fair Dealing in CanadaAriel Katz

5. Fairness Found: How Canada Quietly Shifted from Fair Dealing to Fair UseMichael Geist

6. The Arithmetic of Fair Dealing at the Supreme Court of CanadaGiuseppina D’Agostino

7. Fair Dealing Practices in the Post-Secondary Education Sector after the PentalogySamuel E. Trosow

8. Fairness of Use: Different JourneysMeera Nair

Technological Neutrality

9. Technological Neutrality: (Pre)Serving the Purposes of Copyright LawCarys J. Craig

10. Technological Neutrality in Canadian Copyright LawGregory R. Hagen

Copyright Collective Management

11. Copyright Royalty StackingJeremy de Beer

12. The Internet Taxi: Collective Management of Copyright and the Making Available Right, after the PentalogyDaniel Gervais

The Scope of Copyright

13. Righting a Right: Entertainment Software Association v. SOCAN and the Exclusive Rights of Copyright for WorksElizabeth F. Judge

14. Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright LawTeresa Scassa


This content has been updated on May 2, 2023 at 15:54.