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 chosen by member of public — Copyright Board finding that “making available” provision expanded meaning of “communication” — Meaning of “making available” provision — Use of international law when interpreting statutory provision enacted to implement an international treaty obligation — Whether protection for on-demand activity is impermissible “layering of rights” — Whether meaning of “communication” expanded by “making available” to include making work available to public, regardless of how work is transmitted, if at all — Sensitive, respectful, robust, evaluation of administrative decisions on reasonableness review — Proper standard of review for a question of law subject to concurrent first instance jurisdiction — Proper standard of review for interpretation of provision intended to implement international treaty — Proper standard of review when both conditions are present. .
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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 it, 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 to the Copyright Act in ss. 2.4(1.1), 15(1.1)(d) and 18(1.1)(a). For example, s. 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”. Then, 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. (See also Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, at para. 2.) As a result, royalties were not available for those downloads. When the meaning of the “making available” provisions was brought before the Board in relation to SOCAN’s proposed tariffs, the Board decided that the matter was entirely legal and would be of interest more widely than just to the tariff in question. A separate proceeding was initiated, and the Board invited written submissions from anyone with an interest in the interpretation of the “making available” provisions. Having received submissions from more than 30 organizations, the Board 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. However, in the related matter, it declined to assess a tariff based on lack of evidence: 2020 FCA 101. Judicial review of the latter decision was requested and denied, and leave to appeal was not sought. The Federal Court of Appeal quashed the Board’s decision regarding the meaning of the “making available” provisions.
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