Technological Neutrality: Tension and Limitations
University of Windsor, Faculty of Law
In this post, Professor Chapdelaine reflects on the principle of technological neutrality as applied to copyright law in recent judgments by the Supreme Court of Canada. While intuitively appealing, in particular in how the Supreme Court has applied technological neutrality to balance the competing interests of copyright holders and users, Professor Chapdelaine points to the inherent limitations and tensions that lie at the heart of the principle of technological neutrality.
Technological neutrality has been defined in the context of Canadian copyright law as the principle that the law should ‘apply equally between traditional and more technologically advanced forms of the same media,’ allowing the relevant statute (e.g. Canada’s Copyright Act) to operate ‘consistently, regardless of the form of media involved, or its technological sophistication.’ The principle is often embedded in copyright legislation and as a stated objective in legislative reform.
The application of technological neutrality calls for a purposive interpretation of Canada’s Copyright Act or any other relevant statute, rather than applying a literal interpretation of the law to a novel technology, which may lead to results that are unfair or contrary to the broader objectives of the statute. As such, the application of technological neutrality is interdependent with the objective that the law pursues. It is, therefore, no surprise that courts will invoke and apply the principle of technological neutrality as a means to maintain the balance between competing interests, which is a declared objective of copyright law in Canada and other jurisdictions.
The appeal of technological neutrality is to act as a self-adjusting interpretation tool that allows the law to evolve and to retain its legitimacy and relevancy in the face of ongoing technological change. The difficulty with technological neutrality, as with any other principle of interpretation, resides in how and when it will be applied.
In recent applications of the principle of technological neutrality, courts have given a particular attention to the rights and interests of copyright users. In Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, (SCC, 2012), the Supreme Court of Canada had to decide whether downloading video games through the Internet amounts to a communication to the public of the musical works that the games contain, which communication to the public would be the object of a separate tariff. In a five-to-four decision, the Court held that downloading video games involved no act of communication to the public and could not trigger the application of a separate tariff. The Court majority invoked the principle of technological neutrality, leading it to treat the various forms of copies of copyright works and methods of delivery as one and the same phenomenon in relation to copyright infringement. The Court found a functional equivalent between the online delivery of the copy of a copyright work and the supply of a material medium. The court applied technological neutrality to interpret the purpose of 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 Court concluded that the objective of copyright law was not to attract additional infringement and liability for the method of delivery simply because it occurred on the Internet, noting that delivery offline did not amount to copyright infringement. In Society of Composers, Authors and Music Publishers of Canada v Bell Canada (SCC, 2012) [Bell Canada] the Supreme Court of Canada, in a unanimous judgment, applied the principle of technological neutrality to support its argument that the fairness of the dealing of the online preview of musical recordings had to be assessed from the perspective of individual users and not by looking at the practice in the aggregate. In light of the volume of digital works that are made available on the Internet, the Court found that taking an aggregate approach ‘could well lead to disproportionate findings of unfairness when compared with non-digital works.’
In other cases, courts’ failure to apply the principle of technological neutrality has led to a broader application of copyright holders’ rights in light of the new technological environment, at the expense of user rights and interests. In Canadian Broadcasting Corp v SODRAC 2003 Inc (SCC, 2015) [Sodrac], the Supreme Court of Canada majority held that broadcast-incidental copies made by the Canadian Broadcasting Corporation to ensure greater quality of its broadcasts engaged copyright holders’ reproduction rights in musical recordings, remitting the finalization of the terms of the licence between the two parties to the Copyright Board. According to the Court’s majority, nothing in the text, context, and legislative history of the Canada’s Copyright Act suggested that broadcast-incidental copies did not amount to reproductions that required the authorization of the relevant copyright holders. In his reasons for judgment, Rohstein J took issue with Abella J’s application of technological neutrality in her dissenting reasons, positing that technological neutrality does not allow to override what in the majority of the courts’ view were express statutory terms. In her dissenting reasons, Abella J argued that through the application of technological neutrality and the purpose of Canada Copyright Act, broadcast-incidental copies did not engage the exclusive reproduction right:
It is, in fact, difficult to see how the creation of broadcast-incidental copies implicates the legitimate reproduction interests of the creators of the works in any way. These copies are, to borrow the language of Entertainment Software Association, merely technological taxis required for the delivery of the digital broadcast process. They are not recordings which fix a particular embodiment of the protected works, they are not delivered as durable copies to the viewer or listener, and they do not alter the degree of control that the composer once had over how the work will be presented to the public.
Abella J linked technological neutrality to the objective of seeking a balance in copyright law, as affirmed by the same court in Théberge v Galerie d’Art du Petit Champlain inc (SCC, 2002) [Théberge], and noted how the majority reasons for judgment departed from those objectives. Abella J also noted that the function of the application of media neutrality, as a subset of technological neutrality, was to protect the rights of copyright holders as much as the rights of users.
The extent to which technological neutrality, as a principle of statutory interpretation, can effectively adjust the balance in copyright law to optimize the competing interests of its constituents, including copyright users, remains unclear. The biggest obstacle that the principle of technological neutrality faces lies in courts shying away from it. The temptation may be high to apply a more literal interpretation of the law that appears to provide the more obvious answer, rather than applying a functional equivalence between the old and the new, or applying the law to a drastically new technological environment. The tension as to of how far courts should go in interpreting legislative intent—from judicial restraint to a more active role that seeks to solve the puzzles that technological evolution bring on—is at the heart of the application of technological neutrality.
It may be that technological neutrality, as a principle of statutory interpretation or as a norm of legislative or judicial governance, holds more promises than it is capable of fulfilling. The concept is intuitively appealing but the principle of technological neutrality suffers from inescapable limitations. There are instances where the technological development is so disruptive that courts will be reluctant to apply the principle of technological neutrality and instead call on the relevant legislative body to clarify its response to the technological disruption through legislative amendment.
To the extent that it enables flexibility and seeks to promote and preserve an adequate balance between competing interests in ever-changing technological environments, technological neutrality remains an important principle of interpretation that should be promoted, as the scope of copyright and of user rights continue to be defined.
 Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 at para 5.
 Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36 at para 43.
 Entertainment Software Association, supra note 1 at para 9.
 Bell Canada at para 43.
 Sodrac at para 168.