In our view, the Board’s conclusion that a separate, “communication” tariff applied to downloads of musical works violates the principle of technological neutrality, which requires that the Copyright Act apply equally between traditional and more technologically advanced forms of the same media: Robertson v. Thomson Corp.,  2 S.C.R. 363, at para. 49. The principle of technological neutrality is reflected in s. 3(1) of the Act, which describes a right to produce or reproduce a work “in any material form whatever”. In our view, there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet. The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user.
While many have focused on the “technological taxi” reference (picked up nicely in the dissent), the more important statement comes earlier in the paragraph where the court states that technological neutrality is a principle within the Act that requires equal application between different media (the court cites as support Professor David Vaver, who is easily the most influential source on copyright for the court as his text also served as the support for the users’ rights language in CCH).
Moreover, in a discussion that appears influenced by the CIPPIC intervention in the case (see paras 19-26), the court frames technological neutrality as a matter of balance within the Copyright Act. It continues by stating that:
ESA’s argument is also consistent with this Court’s caution in ThÃ©berge v. Galerie d’Art du Petit Champlain inc.,  2 S.C.R. 336, that the balance in copyright between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creator requires recognizing the “limited nature” of creators’ rights
The linkage between technological neutrality and the limited nature of creators’ rights could prove very significant as the court is concerned that a non-neutral approach may result in overcompensating creators. The effect in the ESA case is immediate:
The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.
The impact of this finding could prove as significant as the users’ rights language in CCH. For cases before the Copyright Board, the court has signalled that technological neutrality means avoiding the double dipping that occurs when new fees are layered onto new technologies. While rights holders have tried to argue that there is additional value that comes from the use of such new technologies, the court has prioritized technological neutrality over additional payments.
This will have a major impact on tariff proposals from collectives such as SOCAN and Re:Sound, who frequently seek additional payments for new delivery mechanisms. Access Copyright will not be left unscathed, since its model licence assumes additional value (and therefore payment) for activities such as linking or electronic access to materials from its repertoire. The court’s analysis suggests that this is double dipping, as it seeks new fees solely for the method of delivery of the work to the end user.
The court’s sensitivity to technological neutrality and the Internet comes out clearly in the song previews case. In the assessment of the fair dealing six factor test, the court rejects the quantification of aggregate copying in part because of the sheer volume of copying that occurs online:
given the ease and magnitude with which digital works are disseminated over the Internet, focusing on the “aggregate” amount of the dealing in cases involving digital works could well lead to disproportionate findings of unfairness when compared with non-digital works. If, as SOCAN urges, large-scale organized dealings are inherently unfair, most of what online service providers do with musical works would be treated as copyright infringement. This, it seems to me, potentially undermines the goal of technological neutrality, which seeks to have the Copyright Act applied in a way that operates consistently, regardless of the form of media involved, or its technological sophistication
The technological neutrality principle has potential applications in a wide range of additional cases. For example, digitization initiatives may be on stronger legal ground, supported by a combination of fair dealing and technological neutrality.
While the most pronounced short term effect of technological neutrality may be on copyright collectives seeking payment based on different delivery methods, the biggest long term impact may be felt when courts begin to assess the effect of the new digital lock rules. Those rules are distinctly non-neutral and could face a rough ride if challenged before the courts. The majority in the ESAC case specifically states that “the traditional balance between authors and users should be preserved in the digital environment”, citing Professor Carys Craig’s article Locking Out Lawful Users: Fair Dealing and Anti-Circumvention in Bill C-32.
That article is focused on how digital locks without appropriate exceptions have the potential to effectively eviscerate fair dealing. In fact, Craig’s full quote states:
‘the traditional copyright balance of rights and exceptions should be preserved in the digital environment.’ The availability and protection of TPMs should not, therefore, alter the copyright balance with respect to the enjoyment of exceptions and limitations. Unfortunately, the anti-circumvention provisions found in Bill C-32 make no attempt to achieve prescriptive parallelism or to maintain the traditional copyright balance, instead sacrificing user rights and privileges to the ultimate power of technical control.
Ironically, the ESAC emerges as a winner in this case, but its broader support for digital locks may be harmed in the process. Given the failure of Bill C-11 to preserve the copyright balance of rights and exceptions with respect to digital locks, those rules “impose an additional layer of protections” and create a “a gratuitous cost” for consumers who lose their user rights in the shift to Internet-based technologies.
The message from the court is clear: copyright law should not stand in the way of technological progress and potentially impede the opportunities for greater access afforded by the Internet through the imposition of additional fees or restrictive rules that create extra user costs. Viewed in this light, technological neutrality as a principle within Canadian copyright may have the same dramatic effects on the law as the articulation of users’ rights did in 2004.