Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., (2012) 432 N.R. 1 (SCC)

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Judge	McLachlin C.J.C. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
Court	Supreme Court (Canada)
Case Date	December 06, 2011
Jurisdiction	Canada (Federal)
Citations	(2012), 432 N.R. 1 (SCC);2012 SCC 35;432 NR 1;[2012] SCJ No 35 (QL);347 DLR (4th) 235;[2012] 2 SCR 283

Rogers Com. Inc. v. SOCAN (2012), 432 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2012] N.R. TBEd. JL.022

Rogers Communications Inc., Rogers Wireless Partnership, Shaw Cablesystems G.P., Bell Canada and TELUS Communications Company (appellants) v. Society of Composers, Authors and Music Publishers of Canada (respondent) and CMRRA-SODRAC Inc., Cineplex Entertainment LP, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Apple Canada Inc. and Apple Inc. (interveners)

(33922; 2012 SCC 35; 2012 CSC 35)

Indexed As: Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al.

Supreme Court of Canada

McLachlin C.J.C. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

July 12, 2012.

Summary:

The Society of Composers, Authors and Music Publishers of Canada applied for a tariff with respect to the performance and communication of musical works on, or by means of, the Internet. The Copyright Board found that the transmission of a musical work to an individual by an online music service (downloads or streams) was a communication of that work to the public by telecommunication within the meaning of s. 3(1)(f) of the Copyright Act and thus were the proper subject for a tariff. Online music services et al. applied for judicial review.

The Federal Court of Appeal, in a decision reported (2010), 409 N.R. 102, dismissed the applications. The online music services appealed, the sole issue being the meaning of the phrase "to the public" in s. 3(1)(f) of the Copyright Act as it related to streaming of music by the music services. A stream was defined as a transmission of data that allowed the user to listen to or view the content transmitted at the time of the transmission, resulting only in a temporary copy of the file on the user's hard drive.

The Supreme Court of Canada first discussed the standard of review where the court and the Copyright Board had concurrent jurisdiction at first instance in interpreting the Copyright Act. The court held that that concurrent jurisdiction rebutted the presumption of reasonablness review of the Board's decisions on questions of law under its home statute. Therefore, the standard of correctness was the appropriate standard of review on questions of law arising on judicial review from the Copyright Board. The court determined that the issue here was a pure question of law. The court thereafter considered the appeal on the merits. The court dismissed the appeal with respect to music streamed from the Internet by the music services. The court allowed the appeal in respect of downloads for the reasons set out by the majority in the companion case Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34. Abella, J., concurred in the result, but opined that the majority's conclusion about how to approach the standard of review where there was shared jurisdiction overcomplicated what should have been be a straight forward application of the reasonableness standard.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Copyright Board (the Federal Court of Appeal agreeing), opined that streams of musical works over the Internet came within the exclusive right of copyright holders to communicate "to the public" by telecommunication (Copyright Act (s. 3(1)(f)) - Accordingly Tariffs could be established - Music service providers appealed - The Supreme Court of Canada discussed the standard of review given that the court and the Copyright Board had concurrent jurisdiction at first instance in interpreting the Copyright Act - That concurrent jurisdiction rebutted the presumption of reasonablness review of the Board's decisions on questions of law under its home statute - Therefore, the standard of correctness was the appropriate standard of review on questions of law arising on judicial review from the Copyright Board, such as the interpretation issue in this case - However, the Board's application of the correct legal principles to the facts of a particular matter should be treated with deference - See paragraphs 10 to 20.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Supreme Court of Canada (majority) stated that it had to "... respectfully disagree with Abella J.'s characterization ... of the holding in ATA [Alberta Teachers' Association v. Information and Privacy Commissioner, SCC 2011] as meaning that the 'exceptions to the presumption of home statute deference are ... constitutional questions and questions of law of central importance to the legal system and outside the adjudicator's specialized expertise' ... ATA simply reinforced the direction in Dunsmuir [SCC 2008] that issues that fall under the category of interpretation of the home statute or closely related statutes normally attract a deferential standard of review ... My colleague's approach would in effect mean that the reasonableness standard applies to all interpretations of home statutes. Yet, ATA and Dunsmuir allow for the exceptional other case to rebut the presumption of reasonableness review for questions involving the interpretation of the home statute" - See paragraph 16.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Supreme Court of Canada, per Rothstein, J., stated that "I wish to be clear that the statutory scheme under which both a tribunal and a court may decide the same legal question at first instance is quite unlike the scheme under which the vast majority of judicial reviews arises. Concurrent jurisdiction at first instance seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts. However, I leave the determination of the appropriate standard of review of a tribunal decision under other intellectual property statutes for a case in which it arises. Nothing in these reasons should be taken as departing from Dunsmuir and its progeny as to the presumptively deferential approach to the review of questions of law decided by tribunals involving their home statute or statutes closely connected to their function" - See paragraph 19.

Administrative Law - Topic 9102

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

Administrative Law - Topic 9103

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

Administrative Law - Topic 9105

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

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - [See all Administrative Law - Topic 3202 ].

General - Copyright defined (incl. extent of copyright) - [See ninth Copyright - Topic 3 ].

General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act gave copyright holders the sole right, "to communicate the work to the public by telecommunication" - At issue was whether streaming of files (musical works) from the Internet triggered by individual users constituted communication "to the public" of the musical works by online music service providers - The Supreme Court of Canada stated that "Following the online music services' business model, musical works are indiscriminately made available to anyone with Internet access to the online music service's website. This means that the customers requesting the streams are not members of a narrow group, such as a family or a circle of friends. Simply, they are 'the public'. In these circumstances, the transmission of any file containing a musical work, starting with the first, from the online service's website to the customer's computer, at the customer's request, constitutes 'communicat[ing] the work to the public by telecommunication'" - See paragraph 56.

General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act provided that copyright holders had the sole right, "to communicate the work to the public by telecommunication" - At issue was whether streaming of files (musical works) from the Internet triggered by individual users constituted communication "to the public" of the musical works by online music service providers - The online music service providers claimed that a point-to-point transmission was necessarily a private transaction outside the scope of the exclusive right to communicate to the public - The Supreme Court of Canada held that although they occurred between the online music provider and the individual consumer in a point-to-point fashion, the transmissions of musical works in this case, where they constituted "communications", could be nothing other than communications "to the public" - The online music service providers business model was premised on the expectation of multiple sales of any given musical work listed in their catalogue - The necessary implication of that business model was that there would be a "series of repeated ... transmissions of the same work to numerous different recipients" which made this case distinguishable from CCH Canadian Ltd. et al. v. Law Society of Upper Canada (2004 SCC) - See paragraphs 1 to 57.

General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act provided that copyright holders had the sole right, "to communicate the work to the public by telecommunication" - The Supreme Court of Canada, quoted Sharlow, J.A., in Canadian Wireless Telecommunications Assn. v. Society of Composers, Authors and Music Publishers of Canada (FCA 2008) as follows: "[I]n determining whether paragraph 3(1)(f) applies to the transmission of a musical work in the form of a digital audio file, it is not enough to ask whether there is a one-to-one communication, or a one-to-one communication requested by the recipient. The answer to either of those questions would not necessarily be determinative because a series of transmissions of the same musical work to numerous different recipients may be a communication to the public if the recipients comprise the public, or a significant segment of the public" - See paragraph 52.

General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act provided that copyright holders had the sole right, "to communicate the work to the public by telecommunication" - The Supreme Court of Canada stated that "CCH (SCC) [CCH Canadian Ltd. et al. v. Law Society of Upper Canada (2004)] determined that a 'series of repeated ... transmissions of the same work to numerous different recipients' may constitute a communication 'to the public' within the meaning of s. 3(1)(f) of the Act (CCH (SCC), at para. 78). Where such a series of point-to-point communications of the same work to an aggregation of individuals is found to exist, it matters little for the purposes of copyright protection whether the members of the public receive the communication in the same or in different places, at the same or at different times or at their own or the sender's initiative" - See paragraph 52.

General - Copyright Act - Interpretation - The Supreme Court of Canada explained how the Copyright Act had changed from granting technology specific communication rights to copyright holders to communicate their literary, dramatic, musical or artistic works by "radio-communication" ("push" technologies) to granting the technologically neutral rights to "communicate ... to the public by telecommunication" - The court stated that the Act had evolved to ensure its continued relevance in an evolving technological environment - History did not support reading into the Act restrictions which were not apparent from and were even inconsistent with the neutral language of the Act itself - The court noted that it had long recognized in the context of the reproduction right that, where possible, the Act should be interpreted to extend to technologies that were not or could not have been contemplated at the time of its drafting (i.e., new technologies) - See paragraphs 36 to 40.

General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act provided that copyright in relation to a work meant the sole right, "in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication" - The Supreme Court of Canada held that s. 3(1)(f) was not limited to traditional "push" technologies (traditional media that operated on a broadcasting or "push" model) - Rather, s. 3(1)(f) was technology neutral - See paragraphs 36 to 40.

General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act provided that copyright holders had the sole right, "to communicate the work to the public by telecommunication" - The Supreme Court of Canada noted that developments at the international level were consistent in encompassing on-demand communications to the public in copyright protection, in particular art. 11bis of the Berne Convention (of which Canada was a party) and the WIPO Copyright Treaty (WCT) - The court noted that Canada had signed, but not yet ratified or legislatively adopted the WCT - "Therefore, the WCT is not binding in this country. The WCT is only cited to demonstrate that the broad interpretation of s. 3(1)(f) of the Act, recognizing that a communication 'to the public' subject to copyright protection may occur through point-to-point transmissions at the user's request, is not out of step with Article 8 of the WCT and international thinking on the issue" - See paragraphs 41 to 49.

General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act provided that copyright holders had the sole right, "to communicate the work to the public by telecommunication" - It was argued, based on American jurisprudence and in particular, Carton Network v. CSC Holdings Inc., that the potential audience of "each point-to-point transmission" had to be considered to determine whether a given transmission was "to the public" - The Supreme Court of Canada held that this case was of no assistance in interpreting the phrase "communicate a work to the public" because of the difference in wording between the American and Canadian legislation - The court stated that "This Court has recognized in the past important differences both in wording and in policy between Canadian and American copyright legislation. It has warned that 'United States court decisions, even where the factual situations are similar, must be scrutinized very carefully' ..." - See paragraphs 50 and 51.

General - Copyright Act - Interpretation - The Supreme Court of Canada stated that "Ultimately, in determining the extent of copyright, regard must be had for the fact that '[t]he Copyright Act is usually presented as 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' (Théberge v. Galerie d'Art du Petit Champlain inc., 2002 SCC 34 ...). This balance is not appropriately struck where the existence of copyright protection depends merely on the business model that the alleged infringer chooses to adopt rather than the underlying communication activity. Whether a business chooses to convey copyright protected content in a traditional, 'broadcasting' type fashion, or opts for newer approaches based on consumer choice and convenience, the end result is the same. The copyrighted work has been made available to an aggregation of individuals of the general public" - See paragraph 40.

General - Copyright Act - Interpretation - At issue was whether the streaming of files (musical works) from the Internet triggered by individual users constituted communication "to the public" of the musical works by online music services (appellants) who made the files available to the users for streaming (Copyright Act, s. 3(1)(f)) - The Supreme Court of Canada stated that "... the appellants proposed rule that each transmission should be analyzed in isolation because each was initiated at the request of individual members of the public would have the effect of excluding all interactive communications from the scope of the copyright holder's exclusive rights to communicate to the public and to authorize such communications. A stream is often effectuated at the request of the recipient. On-demand television allows viewers to request and view the desired program at the time of their choosing. By definition, on-demand communications - relating to the so-called 'pull' technologies - are initiated at the request of the user, independently of any other user, and each individual transmission happens in a point-to-point manner. None of these telecommunications would be considered as being made 'to the public' simply because the actual transmission occurs at the initiative and discretion of the consumer to accept the invitation to the public to access the content. Nothing in the wording of s. 3(1)(f) of the [Copyright] Act implies such a limitation. A communication is not restricted to a purely non-interactive context" - See paragraphs 34 and 35.

Fees, charges or royalties - Determination of - Communication to the public by telecommunication - The Society of Composers, Authors and Music Publishers of Canada applied for a tariff with respect to the performance and communication of musical works on, or by means of, the Internet - The Copyright Board found that the transmission of a musical work to an individual by an online music service (streams) constituted a communication of that work to the public by telecommunication (Copyright Act, 3(1)(f)) and thus was the proper subject for a tariff - Online music services, after an unsuccessful judicial review application, appealed - The Supreme Court of Canada dismissed the appeal, holding that the transmission of any file containing a musical work, starting with the first, from the online service's website to the customer's computer, at the customer's request, constituted "communicat[ing] the work to the public by telecommunication" within the meaning of s. 3(1)(f) - See paragraphs 1 to 57.

Fees, charges or royalties - Determination of - Communication to the public by telecommunication - In CCH Canadian Ltd. v. Law Society of Upper Canada (2004), the Supreme Court of Canada held that the fax transmission of a single copy to a single individual was not a communication to the public, but stated: "This said, a series of repeated fax transmissions of the same work to numerous different recipients might constitute communication to the public in infringement of copyright ..." - The Supreme Court of Canada, in the case at bar, rejected the notion that CCH required that each transmission had to be analyzed on its own, as a separate transaction, regardless of whether another communication of the same work to a different customer might occur at a later point - The court held that the focus had to be on the sender's activities in communicating a given work over time, rather than on the individual transmission - It was necessary to consider the broader context to determine whether a given point-to-point transmission engaged the exclusive right to communicate to the public - See paragraphs 24 to 31.

Fees, charges or royalties - Determination of - Communication to the public by telecommunication - At issue was whether the streaming of files (musical works) from the Internet triggered by individual users constituted communication "to the public" of the musical works by online music services who made the files available to the users for streaming (Copyright Act, s. 3(1)(f)) - The online music service providers argued that the court had to look at the "intention" of the sender in accomplishing a given transmission - As opposed to the situation where the sender took it upon himself to send out numerous communications ("blast" communication), in the case of a one-to one-to-one transmission, at least that from an online music service to a customer at the customer's request, it was argued that there was no intention that the same work ever be transmitted again "because it is entirely at the request of the consuming public" - In the service providers' view, that would justify differential treatment of the point-to-point transmission and the "blast" communication - The Supreme Court of Canada rejected the service providers' argument - See paragraphs 32 to 35.

Fees, charges or royalties - Determination of - Communication to the public by telecommunication - [See all Copyright - Topic 3 ].

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

Fees, charges or royalties - Internet (world wide web) - Music - [See first and second Copyright - Topic 3 and first Copyright - Topic 3436 ].

Courts - Topic 103

Stare decisis - Authority of judicial decisions - English, American and Foreign authorities - American decisions - [See eighth Copyright - Topic 3 ].

Statutes - Topic 515

Interpretation - General principles - International convention - Effect of - [See seventh Copyright - Topic 3 ].

Statutes - Topic 1604

Interpretation - Extrinsic aids - General - History - [See seventh Copyright - Topic 3 ].

Treaties - Topic 1606

Operation and effect - Domestic or internal consequences - [See seventh Copyright - Topic 3 ].

Words and Phrases

To the public - The Supreme Court of Canada discussed the meaning of these words as they were used in the phrase "communicate the work to the public by telecommunication" in s. 3(1)(f) of the Copyright Act, R.S.C. 1985, c. C-42 - See paragraphs 2 to 57.

Cases Noticed:

Entertainment Software Association et al. v. Society of Composers, Authors and Music Publishers of Canada (2012), 432 N.R. 200; 2012 SCC 34, refd to. [paras. 2, 74].

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339; 317 N.R. 107; 2004 SCC 13, reversing (2002), 289 N.R. 1; 18 C.P.R.(4th) 161; 2002 FCA 187, reversing [2000] 2 F.C. 451; 169 F.T.R. 1, dist. [para. 2].

SOCAN Statement of Royalties, Public Performance of Musical Works 1996, 1997, 1998 (Tariff 22, Internet), Re (1999), 1 C.P.R. (4th) 417, refd to. [para. 6].

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; 2004 SCC 45, refd to. [paras. 6, 60].

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; 291 D.L.R.(4th) 577; 2008 SCC 9, refd to. [paras. 11, 60].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [paras. 11, 72].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [paras. 11, 69].

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; 339 D.L.R.(4th) 428; 2011 SCC 61, refd to. [paras. 11, 61].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [paras. 13, 75].

Canadian Wireless Telecommunications Assoc. et al. v. Society of Composers, Authors and Music Publishers of Canada, [2008] 3 F.C.R. 539; 371 N.R. 272; 290 D.L.R.(4th) 753; 2008 FCA 6, refd to. [para. 31].

Composers, Authors and Publishers Assoc. of Canada Ltd. v. CTV Television Network Ltd., [1968] S.C.R. 676, refd to. [para. 36].

Canadian Admiral Corp. v. Rediffusion, Inc., [1954] Ex. C.R. 382, refd to. [para. 36].

Apple Computer Inc. et al. v. Mackintosh Computers Ltd. et al. (No. 1), [1987] 1 F.C. 173; 3 F.T.R. 118 (T.D.), affd. [1988] 1 F.C. 673; 81 N.R. 3 (F.C.A.), affd. [1990] 2 S.C.R. 209; 110 N.R. 66, refd to. [para. 39].

Robertson v. Thomson Corp. et al., [2006] 2 S.C.R. 363; 353 N.R. 104; 217 O.A.C. 332; 2006 SCC 43, refd to. [para. 39].

Théberge v. Galerie d'Art du Petit Champlain inc. et al., [2002] 2 S.C.R. 336; 285 N.R. 267; 2002 SCC 34, refd to. [para. 40].

Cartoon Network v. CSC Holdings, Inc. (2008), 536 F.3d 121, not folld. [para. 50].

Blue Crest Music Inc. et al. v. Compo Co., [1980] 1 S.C.R. 357; 29 N.R. 296, refd to. [para. 51].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 64].

Chamberlain Group Inc. v. Lynx Industries Inc. (2010), 379 F.T.R. 270; 2010 FC 1287, refd to. [para. 71].

Alticor Inc. et al. v. Nutravite Pharmaceuticals Inc. (2005), 339 N.R. 56; 257 D.L.R.(4th) 60; 2005 FCA 269, refd to. [para. 71].

Molson Breweries, A Partnership v. Labatt (John) Ltd. et al., [2000] 3 F.C. 145; 252 N.R. 91 (F.C.A.), refd to. [para. 71].

Doré v. Barreau du Québec (2012), 428 N.R. 146; 2012 SCC 12, refd to. [para. 73].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 77].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 78].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 79].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 424 N.R. 220; 2011 SCC 62, refd to. [para. 79].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 81].

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. 82].

Mattel Inc. v. 3894207 Canada Inc. et al., [2006] 1 S.C.R. 772; 348 N.R. 340; 2006 SCC 22, refd to. [para. 83].

Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, refd to. [para. 87].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al. (2012), 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 87].

Statutes Noticed:

Administrative Tribunals Act, S.B.C. 2004, c. 45, generally [para. 77].

Berne Convention for the Protection of Literary and Artistic Works, 828 U.N.T.S. 221, art. 11 [para. 36].

Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, sect. 61, sect. 62 [para. 37].

Canadian Human Rights Act, R.S.C. 1985, c. H-6, generally [para. 18]; sect. 53(2)(c), sect. 53(2)(d) [para. 72].

Code of ethics of advocates, R.R.Q. 1981, c. B-1, generally [paras. 18, 73].

North American Free Trade Agreement, Can. T.S. 1994 No. 2, art. 1721(2) [para. 25].

Trade-marks Act, R.S.C. 1985, c. T-13, sect. 6 [para. 70].

WIPO Copyright Treaty, 2186 U.N.T.S. 121, art. 1(1) [para. 44]; art. 8 [para. 45].

Authors and Works Noticed:

Canada, Treasury Board, Copyright Board Canada: Performance Report for the period ending March 31, 2003 (online: www.collectionscanada.gc.ca/webarchives/20060120100901/http://www.tbs-sct.gc.ca/rma/dpr/02-03/cb-cda/cb-cda03d_e.asp)., generally [para. 66].

Geist, Michael, ed., From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (2010), p. 514 [para. 65].

Ginsburg, Jane C., The (new?) right of making available to the public, in David Vaver and Lionel Bently, eds., Intellectual Property in the New Millennium: Essays in Honour of William R. Cornish (2004), p. 246 [para. 48].

Handa, Sunny, Copyright Law in Canada (2002), p. 320 [para. 37].

McKeown, John S., Fox on Canadian Law of Copyright and Industrial Designs (4th Ed. 2009) (loose-leaf), p. 21:86 [para. 36].

Mullan, David J., Establishing the Standard of Review: The Struggle for Complexity? (2004), 17 C.J.A.L.P. 59, pp. 74 [para. 85]; 93 [para. 64].

Ricketson, Sam, and Ginsburg, Jane, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (2nd Ed. 2006), vol. I, paras. 12:48, 12.49 [para. 43]; 12:57 [para. 46].

Vaver, David, Intellectual Property Law: Copyright, Patents, Trade-Marks (2nd Ed. 2011), p. 173 [para. 54].

Vaver, David and Bently, Lionel, eds., Intellectual Property in the New Millennium: Essays in Honour of William R. Cornish (2004), p. 246 [para. 48].

Wilkinson, Margaret Ann, Copyright, Collectives, and Contracts: New Math for Educational Institutions and Libraries, in Michael Geist, ed., From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (2010), p. 514 [para. 65].

World Intellectual Property Organization, WIPO Intellectual Property Handbook: Policy, Law and Use, ch. 5, "International Treaties and Conventions on Intellectual Property", No. 489 (2nd Ed. 2004), para. 5.226 [para. 47].

Counsel:

Gerald L. Kerr-Wilson, Ariel A. Thomas and Julia Kennedy, for the appellants;

Gilles Daigle, D. Lynne Watt, Paul Spurgeon and Henry Brown, Q.C., for the respondent;

Written submissions only by Casey M. Chisick, Timothy Pinos and Jason Beitchman, for the intervener, CMRRA-SODRAC Inc.;

Written submissions only by Tim Gilbert, Sana Halwani and Sundeep Chauhan, for the intervener, Cineplex Entertainment LP;

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

Written submissions only by Michael Koch, for the interveners, Apple Canada Inc. and Apple Inc.

Solicitors of Record:

Fasken Martineau DuMoulin, Ottawa, Ontario, for the appellants;

Gowling Lafleur Henderson, Ottawa, Ontario, for the respondent;

Cassels Brock & Blackwell, Toronto, Ontario, for the intervenor, CMRRA-SODRAC Inc.;

Gilbert's, Toronto, Ontario, for the intervener, Cineplex Entertainment LP;

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

Goodmans, Toronto, Ontario, for the interveners, Apple Canada Inc. and Apple Inc.

This appeal was heard on December 6, 2011, before McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada. The decision of the court was released on July 12, 2012, in both official languages, including the following opinions:

Rothstein, J. (McLachlin, C.J.C., LeBel, Deschamps, Fish, Cromwell, Moldaver and Karakatsanis, JJ., concurring) - see paragraphs 1 to 57;

Abella, J., concurring reasons - see paragraphs 58 to 88.

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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a list of all the documents that have cited the case.

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Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
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Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

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Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

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Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
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Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., (2012) 432 N.R. 1 (SCC)

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Over 100 Countries

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

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Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

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Over 2 million registered users