Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al.
(Federal Court) (Civil) (By Leave)
Intellectual property - Copyright - Intellectual property - Copyright - Right to communicate work to public by telecommunication - Making available - Communication to public by telecommunication defined as including making work or other subject matter available to public by telecommunication such that public may have access to it at place and time chose by them in Copyright Act, R.S.C. 1985, c. 42, s. 2.4(1.1) - Whether s. 2.4(1.1) makes the act of making a work available to the public for on-demand access a communication to the public by telecommunication attracts a licence fee, whether the work is subsequently transmitted as a stream, a download, in another format, or not at all - Whether s. 2.4(1.1) expands the meaning of “communication” to include the initial act of making available to the public, regardless of the means of transmission, or whether it is transmitted at all, and any subsequent transmission - Whether any subsequent transmissions merge with the initial act of making available - Whether the expanded communication right is first triggered by the initial act of making content accessible and extends to all subsequent transmissions, if they occur, irrespective of the timing or technological means of transmission - How s. 2.4(1.1) affects Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34.
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The Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) administers the right to “communicate” musical works on behalf of copyright owners. It filed proposed tariffs for the communication to the public by telecommunication of work in its repertoire through an online music service. However, before the Board considered the proposed tariffs, the Copyright Modernization Act, S.C. 2012, c. 20, amended the Copyright Act, R.S.C. 1985, c. C-42. In particular, it added three “making available” provisions in ss. 2.4(1.1), 15(1.1)(d) and 18(1.1)(a). Section 2.4(1.1) provides that, for the purposes of the Copyright Act, “communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public”. A few days after the Copyright Modernization Act was enacted but before it came into force, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (“ESA”), was released. It held that the transmission of a musical work over the Internet that results in a download of that work is not a communication by telecommunication, so royalties were not available for those downloads.
In relation to SOCAN’s proposed tariffs, the Board decided to consider the interpretation of the “making available” provisions separately from the tariff. It invited written submissions from anyone with an interest in the interpretation of the “making available” provisions and received submissions from more than 30 organizations. It found that s. 2.4(1.1) of the Copyright Act deems the act of making a work available to the public a “communication to the public” within s. 3(1)(f) of that Act and, thus, an act that triggers a tariff entitlement. The Federal Court of Appeal quashed the Board’s decision regarding the meaning of the “making available” provisions.
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