Canadian Broadcasting Corp. v. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. et al., (2015) 479 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 16, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 479 N.R. 1 (SCC);2015 SCC 57

CBC v. SODRAC (2015), 479 N.R. 1 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. NO.026

Canadian Broadcasting Corporation (appellant) v. SODRAC 2003 Inc. and Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. (respondents) and Centre for Intellectual Property Policy, Ariel Katz, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Canadian Musical Reproduction Rights Agency Ltd., Canadian Music Publishers Association, International Confederation of Music Publishers, Music Canada, International Federation of the Phonographic Industry, Canadian Council of Music Industry Associations, Canadian Independent Music Association and Association québécoise de l'industrie du disque, du spectacle et de la vidéo (interveners)

(35918; 2015 SCC 57; 2015 CSC 57)

Indexed As: Canadian Broadcasting Corp. v. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ.

November 26, 2015.

Summary:

In 2012, the Copyright Board, in setting the terms of a licence between Canadian Broadcasting Corporation ("CBC") and SODRAC 2003 Inc. and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. (collectively, "SODRAC") for the 2008-2012 period, held that CBC's broadcast-incidental copying activity engaged the reproduction right established by s. 3(1)(d) of the Copyright Act, that a licence for such copies could not be implied from synchronization licences covering the production process, and that CBC required a separate reproduction licence to legitimize its broadcast-incidental copying. The Board found that the appropriate valuation for this licence was more than nominal, and issued a licence authorizing CBC to reproduce works in the SODRAC repertoire in conjunction with a list of activities, including the production of CBC's in-house programs and the broadcasting of programs on CBC's television services and on the Internet (the 2008-2012 Statutory Licence). It later issued an interim licence to take effect after the expiry of the 2008-2012 licence that extended the terms of that licence on an interim basis, subject to minor modifications. CBC applied for judicial review.

The Federal Court of Appeal, in a decision reported at (2014), 457 N.R. 156, upheld both the 2008-2012 licence and the interim licence that followed, subject to minor amendments. The CBC appealed.

The Supreme Court of Canada, Abella and Karakatsanis, JJ., dissenting, held that the Board was correct in finding that broadcast-incidental copying engaged the reproduction right, consistent with the decision in Bishop v. Stevens (1990 SCC) and the context of the statutory scheme set out in the Copyright Act. Though the Supreme Court's subsequent decisions in Théberge v. Galerie d'Art du Petit Champlain inc. and Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, had refined the understanding of the purposes of copyright law, the central holding in Bishop, that ephemeral copies engaged the reproduction right, remained sound. The court further agreed with the Board and the Federal Court of Appeal that a licence to make broadcast-incidental copies should not be implied from synchronization licences issued by SODRAC. However, the Board erred in failing to consider the principles of technological neutrality and balance in setting the valuation of this licence. The court remitted the matter to the Board for reconsideration of the valuation of the 2008-2012 licence for CBC's television and Internet broadcast-incidental copies applying the principles of technological neutrality and balance. Because the interim licence that followed was based on the terms of the 2008-2012 licence, the court also set it aside and remitted it for redetermination.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - In 2012, the Copyright Board set the terms of a licence between Canadian Broadcasting Corporation ("CBC") and SODRAC 2003 Inc. and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. (collectively, "SODRAC") for the 2008-2012 period - The Board issued a licence authorizing CBC to reproduce works in the SODRAC repertoire in conjunction with a list of activities (the 2008-2012 Statutory Licence) - It later issued an interim licence to take effect after the expiry of the 2008-2012 licence - The Federal Court of Appeal upheld both the 2008-2012 licence and the interim licence, subject to minor amendments - The CBC appealed - The Supreme Court of Canada determined the standard of review - Rothstein, J., stated, inter alia, "Whether broadcast-incidental copies engage the reproduction right, and thus whether the Copyright Act allows SODRAC to seek a licence for CBC's broadcast-incidental copying, is a question of law. This Court has established that there is a presumption that the decisions of administrative bodies should receive deference when interpreting or applying their home statute. However, because of the 'unusual statutory scheme under which the Board and the court may each have to consider the same legal question [under the Copyright Act] at first instance', the presumption is rebutted here ... Thus, a standard of correctness applies to this issue" - See paragraph 35.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - In 2012, the Copyright Board set the terms of a licence between Canadian Broadcasting Corporation ("CBC") and SODRAC 2003 Inc. and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. (collectively, "SODRAC") for the 2008-2012 period - The Board issued a licence authorizing CBC to reproduce works in the SODRAC repertoire in conjunction with a list of activities (the 2008-2012 Statutory Licence) - It later issued an interim licence to take effect after the expiry of the 2008-2012 licence - The Federal Court of Appeal upheld both the 2008-2012 licence and the interim licence, subject to minor amendments - The CBC appealed - The Supreme Court of Canada determined the standard of review - Rothstein, J., stated, inter alia, "Whether a licence for CBC's broadcast-incidental copying is implied in the associated synchronization licences involves both the scope of the reproduction right and the interpretation of SODRAC's synchronization licences. As this Court has recently observed, '[c]ontractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix': ... Accordingly, a standard of reasonableness applies when reviewing the Board's determination regarding what may be implied from the relevant synchronization licences. The Board's decision establishing the monetary value of a broadcast-incidental copying licence involves the examination of how the user intends to make use of the licensed works in light of the legal principles relevant to the reproduction right, and thus involves questions of mixed fact and law. Accordingly, a standard of reasonableness applies" - See paragraphs 36 to 37.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - In 2012, the Copyright Board set the terms of a licence between Canadian Broadcasting Corporation ("CBC") and SODRAC 2003 Inc. and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. (collectively, "SODRAC") for the 2008-2012 period - The Board issued a licence authorizing CBC to reproduce works in the SODRAC repertoire in conjunction with a list of activities (the 2008-2012 Statutory Licence) - It later issued an interim licence to take effect after the expiry of the 2008-2012 licence - The Federal Court of Appeal upheld both the 2008-2012 licence and the interim licence, subject to minor amendments - The CBC appealed - The Supreme Court of Canada determined the standard of review - Rothstein, J., stated, inter alia, "CBC challenges the Board's interim order on two points. First, CBC argues that the 2008-2012 licence was not an appropriate status quo baseline for the interim licence. The selection of the baseline involves the exercise of the Board's discretion to issue an interim licence under s. 66.51 of the Copyright Act. This exercise of discretion is not shared with the courts, and thus will be reviewed on a reasonableness standard. The second basis on which CBC challenges the interim order concerns whether the Board may impose a blanket synchronization licence on a user against that user's wishes. CBC characterizes this as a question of the Board's jurisdiction to issue certain types of licences, and argues that it should be reviewed for correctness. ... Assuming such questions exist, this issue is not one of the 'exceptional' instances of a true question of jurisdiction. The question of whether the Board is generally able to impose blanket synchronization licences under the Copyright Act against the wishes of a licensee is nonetheless a question of law, but it is not an interpretive question the Board shares with the courts at first instance: the courts can be seized of the question of whether the Board acted properly in structuring a licence only once there is a Board-imposed licence to review. Accordingly, this issue attracts a standard of reasonableness" - See paragraphs 38 to 40.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - In 2012, the Copyright Board set the terms of a licence between Canadian Broadcasting Corporation ("CBC") and SODRAC 2003 Inc. and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. (collectively, "SODRAC") for the 2008-2012 period - The Board issued a licence authorizing CBC to reproduce works in the SODRAC repertoire in conjunction with a list of activities (the 2008-2012 Statutory Licence) - It later issued an interim licence to take effect after the expiry of the 2008-2012 licence - The Federal Court of Appeal upheld both the 2008-2012 licence and the interim licence, subject to minor amendments - The CBC appealed - The Supreme Court of Canada determined the standard of review applicable with respect to the issues raised - Rothstein, J., for the majority stated that "every standard of review analysis requires identification of the issues under review" - Abella, J., objected to the segmentation of issues for the purpose of the standard of review analysis - Karakatsanis, J., disagreed that a specific standard of review should be ascribed to each issue arising in the appeal - See paragraphs 41 to 42, 185 to 191 and 194.

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - [See third Administrative Law - Topic 3202 ].

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - [See Copyright - Topic 3009 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See all Administrative Law - Topic 3202 ].

Copyright - Topic 3

General - Copyright Act - Interpretation - [See Copyright - Topic 602 and first Copyright - Topic 3426 ].

Copyright - Topic 602

Nature of copyright - Reproduction - What constitutes - In 2012, the Copyright Board, in setting the terms of a licence between the appellant, Canadian Broadcasting Corporation ("CBC"), and SODRAC 2003 Inc. and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. (collectively, "SODRAC") for the 2008-2012 period, held that CBC's broadcast-incidental copying activity engaged the reproduction right established by s. 3(1)(d) of the Copyright Act - CBC argued that broadcast-incidental copies did not engage the reproduction right, and thus did not support SODRAC's efforts to seek licence fees for such copies - In so arguing, CBC placed considerable weight on two general principles of Canadian copyright law: the balancing of user and right-holder interests and the principle of technological neutrality - The Supreme Court of Canada, per Rothstein, J., stated that "Although made in the process of broadcasting, these broadcast-incidental copies nevertheless trigger the reproduction right. They are not exempted by ss. 30.8 and 30.9 [of the Copyright Act]. There is nothing in the text, context or legislative history of these provisions (or s. 3(1)) that supports the view that the broadcasting process obviates the fact that broadcast-incidental copies are reproductions under the Copyright Act. Arguments based on purpose in the form of technological neutrality and balance are advanced to come to the opposite conclusion, but purposive construction is a tool of statutory interpretation to assist in understanding the meaning of the text. It is not a stand-alone basis for the Court to develop its own theory of what it considers appropriate policy" - See paragraphs 43 to 55.

Copyright - Topic 3009

Licences - General - Interim licence - In 2012, the Copyright Board set the terms of a licence between Canadian Broadcasting Corporation ("CBC") and SODRAC 2003 Inc. and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. (collectively, "SODRAC") for the 2008-2012 period - The Board issued a licence authorizing CBC to reproduce works in the SODRAC repertoire in conjunction with a list of activities: 2008-2012 Statutory Licence - It later issued an interim licence to take effect after the expiry of the 2008-2012 licence - The Federal Court of Appeal upheld both the 2008-2012 licence and the interim licence, subject to minor amendments - The CBC appealed - The Supreme Court of Canada, per Rothstein, J., stated that "I am unpersuaded by CBC's argument that the Board's approach to identifying the status quo and using it as the basis for an interim licence has impermissibly 'fettered its discretion by adopting an overly restrictive definition of the status quo' ... The Board's approach allows it to avoid the uncertainty and legal vacuums that would occur in the absence of an interim decision, and the use of the licence terms in effect immediately prior to the entering into effect of the interim decision provides for continuity between the previous arrangement and the interim licence. Further, the Board's acknowledgment that factors may sometimes justify departing from the status quo where indicated by the balance of convenience provides that the Board has not completely fettered its discretion. I find nothing unreasonable in the Board's approach to identifying and using the 2008-2012 statutory licence as the status quo in this case" - See paragraphs 97 to 100.

Copyright - Topic 3011

Licences - General - Synchronization licence - In 2012, the Copyright Board, in setting the terms of a licence between the appellant, Canadian Broadcasting Corporation ("CBC"), and SODRAC 2003 Inc. and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. (collectively, "SODRAC") for the 2008-2012 period, held that CBC's broadcast-incidental copying activity engaged the reproduction right established by s. 3(1)(d) of the Copyright Act - CBC argued that if a licence covering CBC's broadcast-incidental copies was required, it should be implied from CBC's synchronization licences or the synchronization licences of third party producers - To hold otherwise, CBC asserted, would be to render synchronization licences "economically sterile" and would allow SODRAC to engage in "non-neutral royalty stacking" - CBC's economic argument was based on the proposition that "a single master copy [made under a synchronization licence] is useless without a corresponding implied licence to make the necessary broadcast-incidental copies" - Instead, it argued that a "technologically-neutral approach to a synchronization licence is one that implies the necessary incidental rights in order to achieve the licence's agreed-upon purpose" - The Supreme Court of Canada did not agree - It was reasonable for the Board to decline to identify an implied licence to engage in broadcast-incidental copying within the synchronization licences underlying the programs that CBC broadcasted - See paragraphs 56 to 64.

Copyright - Topic 3041

Licences - Effect of - General - The Supreme Court of Canada found that licences fixed by the CopyrighţBoard did not have mandatory binding force over a user - The Board had the statutory authority to fix the terms of licences pursuant to s. 70.2 of the Copyright Act, but a user retained the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline - See paragraphs 101 to 113.

Copyright - Topic 3045

Licences - Effect of - Licence to broadcast - [See Copyright - Topic 602 ].

Copyright - Topic 3426

Fees, charges or royalties - Determination of - Relevant considerations - The Supreme Court of Canada, per Rothstein, J., stated that "The principle of technological neutrality is recognition that, absent parliamentary intent to the contrary, the Copyright Act should not be interpreted or applied to favour or discriminate against any particular form of technology. It is derived from the balancing of user and right-holder interests discussed by this Court in Théberge - a 'balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator': ... Because this long-standing principle informs the Copyright Act as a whole, it must be maintained across all technological contexts: 'The traditional balance between authors and users should be preserved in the digital environment': ... In the regulatory context, the principle of technological neutrality applies to valuation of a reproduction licence, just as it does in determining whether an activity implicates copyright at all. The [Copyright] Board operates pursuant to the Copyright Act, and in its regulatory role of fixing royalties under s. 70.2, it may not simply set aside the principles that guide its interpretation of the Act once it has begun its valuation analysis. While the Board's valuation analysis will vary according to the facts of each case, it is unreasonable for the Board to ignore the principle of technological neutrality in that analysis in cases where it is implicated" - See paragraphs 66 to 67.

Copyright - Topic 3426

Fees, charges or royalties - Determination of - Relevant considerations - The Supreme Court of Canada, per Rothstein, J., stated that "When it is tasked with fixing licence fees, the [Copyright] Board must have regard to factors it considers relevant in striking a balance between the rights of users and right-holders. Relevant factors will include, but are not limited to, the risks taken by the user, the extent of the investment the user made in the new technology, and the nature of the copyright protected work's use in the new technology. The Board must assess the respective contributions of, on the one hand, the risks taken by the user and the investment made by the user, and on the other hand, the reproductions of the copyright protected works, to the value enjoyed by the user. In this case, where the financial risks of investing in and implementing new technology were undertaken by the user and the use of reproductions of copyright protected works was incidental, the balance principle would imply relatively low licence fees to the copyright holder" - See paragraph 75.

Copyright - Topic 3426

Fees, charges or royalties - Determination of - Relevant considerations - In 2012, the Copyright Board, in setting the terms of a licence between Canadian Broadcasting Corporation ("CBC") and SODRAC 2003 Inc. and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. (collectively, "SODRAC") for the 2008-2012 period, held that CBC's broadcast-incidental copying activity engaged the reproduction right established by s. 3(1)(d) of the Copyright Act, that a licence for such copies could not be implied from synchronization licences covering the production process, and that CBC required a separate reproduction licence to legitimize its broadcast-incidental copying - The Board found that the appropriate valuation for this licence was more than nominal, and issued a licence authorizing CBC to reproduce works in the SODRAC repertoire in conjunction with a list of activities, including the production of CBC's in-house programs and the broadcasting of programs on CBC's television services and on the Internet (the 2008-2012 Statutory Licence) - It later issued an interim licence to take effect after the expiry of the 2008-2012 licence that extended the terms of that licence on an interim basis, subject to minor modifications - CBC applied for judicial review - The Federal Court of Appeal upheld both the 2008-2012 licence and the interim licence, subject to minor amendments - The CBC appealed - The Supreme Court of Canada concluded that "the Board's decision was unreasonable in that it did not consider how the principles of technological neutrality and balance ought to have been reflected in the licence fees imposed on CBC with regard to its television and Internet broadcast-incidental copying activity. I would remit the matter to the Board for reconsideration of those portions of the Statutory Licence Decision that address these fees with instructions to conduct its analysis in a manner that is consistent with technological neutrality and balance" - See paragraphs 80 to 96.

Copyright - Topic 3440

Fees, charges or royalties - Determination of - Judicial review - [See second Administrative Law - Topic 3202 ].

Copyright - Topic 3444

Fees, charges or royalties - Internet (world wide web) - Music - [See third Copyright - Topic 3426 ].

Copyright - Topic 4487

Infringement of copyright - Acts constituting an infringement - Music (incl. ephemeral copies) - [See Copyright - Topic 602 ].

Copyright - Topic 5667

Copyright Board - Jurisdiction - Judicial review - Standard of review - [See third Administrative law - Topic 3202 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Copyright - Topic 602 ].

Cases Noticed:

Bishop v. Stevens - see Bishop v. Télé-Métropole Inc.

Bishop v. Télé-Métropole Inc., [1990] 2 S.C.R. 467; 111 N.R. 376, refd to. [para. 2].

Théberge v. Galerie d'Art du Petit Champlain inc. et al., [2002] 2 S.C.R. 336; 285 N.R. 267; 2002 SCC 34, appld. [paras. 5, 145].

Entertainment Software Association et al. v. Society of Composers, Authors and Music Publishers of Canada, [2012] 2 S.C.R. 231; 432 N.R. 200; 2012 SCC 34, appld. [paras. 5, 117].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, refd to. [paras. 35, 146, 193].

Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633; 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 36].

Tervita Corp. et al. v. Commissioner of Competition et al., [2015] 1 S.C.R. 161; 467 N.R. 97; 2015 SCC 3, refd to. [para. 37].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 37].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 39].

Mouvement laïque québécois et al. v. Saguenay (City), [2015] 2 S.C.R. 3; 470 N.R. 1; 2015 SCC 16, refd to. [para. 41].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [paras. 42, 189].

Performing Rights Society v. Hammond's Bradford Brewery Co., [1934] 1 Ch. 121, refd to. [para. 47].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [paras. 48, 177].

Statement of Royalties to be Collected by CMRRA/SODRAC Inc. for the Reproduction of Musical Works, in Canada, by Commercial Radio Stations in 2001, 2002, 2003 and 2004, March 28, 2003 (Copyright Bd.) (online), refd to. [para. 88].

Statement of Royalties to be Collected by SOCAN, Re:Sound, CSI, AVLA/SOPROQ and Artisti in Respect of Commercial Radio Stations, July 9, 2010 (Copyright Bd.) (online), refd to. [para. 91].

Gosling v. Veley (1850), 12 Q.B. 328; 116 E.R. 891, refd to. [para. 107].

Ontario English Catholic Teachers' Association et al. v. Ontario (Attorney General) et al., [2001] 1 S.C.R. 470; 267 N.R. 10; 144 O.A.C. 1; 2001 SCC 15, refd to. [para. 107].

Attorney-General v. Wilts United Dairies, Ltd. (1921), 37 T.L.R. 884 (C.A.), refd to. [para. 107].

Vigneux v. Canadian Performing Right Society Ltd., [1943] S.C.R. 348, refd to. [para. 112].

Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109, refd to. [para. 112].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306, refd to. [para. 146].

Robertson v. Thompson Corp. et al., [2006] 2 S.C.R. 363; 353 N.R. 104; 217 O.A.C. 332, refd to. [para. 146].

Kraft Canada Inc. v. Euro Excellence Inc., [2007] 3 S.C.R. 20; 365 N.R. 332; 2007 SCC 37, refd to. [para. 146].

Society of Composers, Authors and Music Publishers of Canada v. Bell Canada et al., [2012] 2 S.C.R. 326; 432 N.R. 103; 2012 SCC 36, refd to. [para. 146].

Alberta (Minister of Education) et al. v. Canadian Copyright Licensing Agency et al., [2012] 2 S.C.R. 345; 432 N.R. 134; 2012 SCC 37, refd to. [para. 146].

Cinar Corp. et al. v. Robinson et al., [2013] 3 S.C.R. 1168; 452 N.R. 123; 2013 SCC 73, refd to. [para. 146].

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 188].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 191].

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42, sect. 3(1)(d), sect. 30.7, sect. 30.8, sect. 30.9, sect. 70.2 [para. 34].

Counsel:

Marek Nitoslawski and Joanie Lapalme, for the appellant;

Colette Matteau and Lisane Bertrand, for the respondents;

Howard P. Knopf, David Lametti and Ariel Katz, for the interveners, the Centre for Intellectual Property Policy and Ariel Katz;

David Fewer and Jeremy de Beer, for the intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic;

Casey M. Chisick, Peter J. Henein and Eric Mayzel, for the interveners, the Canadian Musical Reproduction Rights Agency Ltd., the Canadian Music Publishers Association and the International Confederation of Music Publishers;

Barry B. Sookman and Daniel G.C. Glover, for the interveners, Music Canada, the International Federation of the Phonographic Industry, the Canadian Council of Music Industry Associations, the Canadian Independent Music Association and Association québécoise de l'industrie du disque, du spectacle et de la vidéo.

Solicitors of Record:

Fasken Martineau DuMoulin, Montreal, Quebec, for the appellant;

Matteau Poirier avocats inc., Montreal, Quebec, for the respondents;

Macera & Jarzyna, Ottawa, Ontario, for the interveners, the Centre for Intellectual Property Policy and Ariel Katz;

University of Ottawa, Ottawa, Ontario, for the intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic;

Cassels Brock & Blackwell, Toronto, Ontario, for the interveners, the Canadian Musical Reproduction Rights Agency Ltd., the Canadian Music Publishers Association and the International Confederation of Music Publishers;

McCarthy Tétrault, Toronto, Ontario, for the interveners, Music Canada, the International Federation of the Phonographic Industry, the Canadian Council of Music Industry Associations, the Canadian Independent Music Association and Association québécoise de l'industrie du disque, du spectacle et de la vidéo.

This appeal was heard on March 16, 2015, before McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on November 26, 2015, including the following opinions:

Rothstein, J. (McLachlin, C.J.C., Cromwell, Moldaver, Wagner, Gascon and Côté, JJ., concurring) - see paragraphs 1 to 116;

Abella, J., dissenting - see paragraphs 117 to 192;

Karakatsanis, J., dissenting - see paragraphs 193 to 195.