Not to say I told you so

But, I told you so. In my piece on the Supreme Court of Canada's copyright pentalogy (to appear next year in Michael Geist's edited collection), I predicted that the concurrent jurisdiction innovation would cause confusion.

Sure enough, counsel for the losing party in Pastore v. Aviva Canada Inc., 2012 ONCA 887 made an application for the Ontario Court of Appeal to re-open the case, on the basis that account had not been taken of the concurrent jurisdiction innovation (which appeared after the close of argument in Pastore and before the release of the ONCA's reasons).

Standard of Review in the Copyright Cases

Last week the Supreme Court of Canada released its reasons in a "fivefecta" of copyright cases. Interesting questions were raised. Are additional royalties payable when a video game is downloaded rather than bought over the counter? Is streaming a communication to the public which requires payment to the copyright holder? When a consumer listens to a preview of a song on iTunes, is Apple on the hook for an extra royalty? How much copying can a teacher do to create course materials for students? And is a movie soundtrack to be treated as a whole or a collection of components? Amidst all this, the Court also found time to introduce a new innovation in standard of review.