Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2002 FCA 166 (2002)
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Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2002 FCA 166 (2002)
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Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers (C.A.) [2002] 4 F.C. 3Date: 20020501Docket: A-764-99Neutral citation: 2002 FCA 166CORAM: LINDEN J.A.EVANS J.A.SHARLOW J.A.BETWEEN:SOCIETY OF COMPOSERS, AUTHORS AND MUSICPUBLISHERS OF CANADAApplicantandCANADIAN ASSOCIATION OF INTERNET PROVIDERS,CANADIAN CABLE TELEVISION ASSOCIATION,AT & T CANADA LONG DISTANCE SERVICES COMPANY,MCI COMMUNICATIONS CORPORATION,BELL/EXPRESSVU, CANADIAN ASSOCIATION OF BROADCASTERS,TELUS COMMUNICATIONS INC., BELL CANADA,CANADIAN BROADCASTING CORPORATION,CANADIAN MOTION PICTURE DISTRIBUTORS ASSOCIATION,CANADIAN RECORDING INDUSTRY ASSOCIATION,TIME WARNER INC., ALIANT INC., MTS COMMUNICATIONS INC.and SASKATCHEWAN TELECOMMUNICATIONSRespondentsandTHE CANADIAN RECORDING INDUSTRY ASSOCIATION andNEIGHBORING RIGHTS COLLECTIVE OF CANADAIntervenersHeard at Ottawa, Ontario, on September 25 and 26, 2001.Judgment delivered at Ottawa, Ontario, on May 1, 2002.REASONS FOR JUDGMENT BY: EVANS J.A.CONCURRED IN BY: LINDEN J.A.DISSENTING REASONS IN PART BY: SHARLOW J.A.Date: 20020501Docket: A-764-99Neutral citation: 2001 FCA 166CORAM: LINDEN J.A.EVANS J.A.SHARLOW J.A.BETWEEN:SOCIETY OF COMPOSERS, AUTHORS AND MUSICPUBLISHERS OF CANADAApplicantandCANADIAN ASSOCIATION OF INTERNET PROVIDERS,CANADIAN CABLE TELEVISION ASSOCIATION,AT & T CANADA LONG DISTANCE SERVICES COMPANY,MCI COMMUNICATIONS CORPORATION,BELL/EXPRESSVU, CANADIAN ASSOCIATION OF BROADCASTERS,TELUS COMMUNICATIONS INC., BELL CANADA,CANADIAN BROADCASTING CORPORATION,CANADIAN MOTION PICTURE DISTRIBUTORS ASSOCIATION,CANADIAN RECORDING INDUSTRY ASSOCIATION,TIME WARNER INC., ALIANT INC., MTS COMMUNICATIONS INC.and SASKATCHEWAN TELECOMMUNICATIONSRespondentsandTHE CANADIAN RECORDING INDUSTRY ASSOCIATION andNEIGHBORING RIGHTS COLLECTIVE OF CANADAIntervenersREASONS FOR JUDGMENTEVANS J.A.A. INTRODUCTION[1] In a remarkably short time, the Internet has become a global mass medium of communication that operates sans frontières . As technical difficulties have been overcome, the transmission of music, generally recorded, but sometimes live or broadcast, has recently become an increasingly popular use of the Internet. The issue underlying this case is who can be made liable to pay royalties to the owners of the copyright in music that is transmitted on the Internet.[2] At the end of the first phase of a proceeding to determine the amount and allocation of the royalty payable to copyright owners for the communication of music on the Internet, the Copyright Board held that a royalty can be imposed on those who post music on a server located in Canada to which Internet users have access. The Board also held that a royalty cannot be imposed on those whose only role in Internet transmissions is to operate a server on which music is stored, or to provide a recipient with Internet access. The normal activities of Internet intermediaries, it found, do not constitute a communication for the purpose of the Copyright Act, R.S.C. 1985, c. C-42, and thus do not infringe the exclusive communication rights of copyright owners.[3] The Board's decision was rendered on October 27, 1999. It is reported as SOCAN Statement of Royalties, Public Performance of Musical Works 1996, 1997, 1998 (Tariff 22, Internet) (Re) (1999), 1 C.P.R. (4th) 417 (" Tariff 22 "). It is also available in both official languages on the Copyright Board's Web site: www.cb-cda.gc.ca/decisions/music-e.html . Because the paragraphs of the Board's reasons are not numbered, references in my reasons are to page numbers in the print version.[4] This is an application for judicial review under section 28 of the Federal Court Act , R.S.C. 1985, c. F-7, to set aside the decision of the Board excluding most Internet intermediaries from liability to pay royalties for copyright music transmitted on the Internet. The applicant is the Society of Composers, Authors and Music Publishers of Canada ("SOCAN"), which collectively administers in Canada the performing and communication rights of its members, and of foreign composers, authors and publishers. The applicant is supported by interveners representing performers of recorded music and recording companies. The respondents include an association of Internet access providers, associations of television cable companies, motion picture distributors and broadcasters, as well as individual broadcasters and telephone companies.[5] The application for judicial review raises three substantive questions. First, when material is transmitted on the Internet, do the operator of the server on which it is stored, and the entity supplying the ultimate recipient with access to the Internet, only provide "the means of telecommunication necessary for another person to so communicate the work" within the meaning of paragraph 2.4(1)( b ) of the Copyright Act...See the full content of this document
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