Technological neutrality is an interpretive principle that has been viewed by its proponents as an essential mechanism in ensuring that new technologies are not hindered by copyright law.1 The principle has been adopted by courts in order to apply the Copyright Act to technologies that may not have been envisioned by Parliament at the time the legislation was drafted.
Historically, case law has referred to this principle as “media neutrality”, which was defined in Robertson v Thomson Corp to mean “that the Copyright Act should continue to apply in different media, including more technologically advanced ones”.2 Another definition was provided by the Supreme Court in Entertainment Software Association v SOCAN, describing the principle of technological neutrality as requiring “that the Act apply equally notwithstanding the technological diversity of different forms of media”.3
Technological neutrality has been read into the words of s. 3(1) of the Copyright Act:
3.(1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof … [emphasis added].
The goal of the principle is to ensure that new technologies are not unduly hampered by copyright law, while maintaining balance between the rights of creators and users of copyrighted works.4 It protects authors by ensuring that new methods of disseminating works remain within the scope of their rights, so that one cannot escape copyright liability simply by using new technology. It also ensures that users who use new technologies to access existing works are not disadvantaged through additional copyright liability. An overly technology-specific copyright regime may lead to more litigation and less efficiency, as non-neutral regimes tend to encourage engineers to design around the law.5
The statutory basis for technological neutrality—the words “in any material form whatever” in section 3(1) of the Copyright Act—has been in place since the 1921 version of the Copyright Act. This broad language reflects Parliament’s intention of drafting legislation in a “media neutral” manner so as not to restrict copyright protection to particular physical forms.6 Despite the statutory language, however, the concept of technological neutrality did not appear prominently in the case law until 1986 in Apple Computer Inc v Mackintosh Computers Ltd.7
In Apple, the works at issue were two computer programs embedded within Apple II+ computers. The defendants produced (unauthorized) “clones” of Apple computers, and in the process reproduced the software. However, the defendants did not copy the source code for the programs; instead, they copied the programs directly from the physical ROM chips of the Apple systems while making only minor modifications.8 It was conceded that source code was protected by copyright as a literary work. The question for the court was whether the computer programs when embedded in physical form (etched into a silicon chip) were still protected. The trial judge held that copying the chips were a “clearly” a reproduction of the source code, no matter the form. This decision was upheld by on appeal to both the Federal Court of Appeal and the Supreme Court.
While the courts in Apple applied s. 3(1), the term “neutrality” did not appear until Robertson v Thomson Corp was decided in 2006.9 In Robertson, a majority of the Supreme Court held that reproduction of individual newspaper articles in an electronic database by the newspaper publisher infringed the copyright of the freelance authors. In dissent, Abella J argued that reproduction of the articles were well within the rights of the publisher:
Whether it is presented in an e-mail as an “electronic daily edition”, or consists of a bundle of files on a disk, this electronic edition contains a substantial part of the skill and judgment exercised by the publishers in creating that day's newspaper. It is a reproduction of the print edition in electronic form. That is precisely what media neutrality protects.10
This line of cases was picked up in ESA v SOCAN, where Abella J, this time writing for the majority (with Moldaver J), held that copies of video games downloaded from the Internet were equivalent to physical copies bought from stores.11 The Court noted:
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. [Emphasis in original.] 12
In Rogers v SOCAN,13 a companion case to ESA, Rothstein J linked the principle of technological neutrality to the underlying purpose of copyright, that of balancing the public's interest in the dissemination of works against the authors' interests in obtaining a just reward:
This balance is not appropriately struck where the existence of copyright protection depends merely on the business model that the alleged infringer chooses to adopt rather than the underlying communication activity. Whether a business chooses to convey copyright protected content in a traditional, “broadcasting” type fashion, or opts for newer approaches based on consumer choice and convenience, the end result is the same.14
In Rogers, the principle was applied by the Court to equate “push” and “pull” technologies, so that providers of “on-demand” services could not escape copyright liability by claiming that they did not communicate a work “to the public”.