Professor Cameron Hutchison's recent scholarship on technological neutrality in copyright law was quoted three times in Madam Justice Abella's dissenting judgment in CBC v. SODRAC http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15646/index.do. , in which Karakatsanis J. concurred on the merits. The issue in that case was whether the CBC, which had obtained a license to broadcast a work (the performance right) had to also pay a fee for the making of incidental copies to facilitate the broadcast (the reproduction right). Modern broadcasting practices require that several incidental digital copies be made to effect a broadcast. Abella J. held that incidental copies made for the purpose of making a broadcast are not copies, for the purpose of copyright, and thus not compensable.
Hutchison's framework for understanding technological neutrality was partially adopted in Abella J.'s strong dissent, in particular his thesis concerning functional equivalency and the role of technological neutrality as a means of ensuring that new technological innovations are not impeded by copyright infringement concerns. Functional equivalency is the focus on what the technology is doing (here broadcasting) as opposed to how it is doing it (the making of copies). As well, as Hutchison argued, the Supreme Court of Canada in previous case law has already determined that other incidental copying - caching or copies on hard drives to effect internet transmissions and streaming of content - does not attract copyright liability. The court has absolved these activities from copyright liability mostly to ensure that the internet innovations are not impeded; similarly, other digital innovations should also not be hampered by copyright concerns.
The majority judgment held that broadcast incidental copies were compensable under the copyright regime. According to Hutchison, this opinion does not fit within the skein of existing Supreme Court of Canada case law on technological neutrality and is destined to lead to uncertainty and incoherence in the law as new technologies and uses emerge in the digital age.
Hutchison is currently doing final edits on his book Digital Copyright Law, which will be submitted later this month to Irwin law with a publication date of sometime in 2016.