Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., (2010) 409 N.R. 102 (FCA)

• Judge: Létourneau, Nadon and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 03, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 409 N.R. 102 (FCA);2010 FCA 220

Rogers Com. v. SOCAN (2010), 409 N.R. 102 (FCA)

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[French language version follows English language version]

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

Temp. Cite: [2010] N.R. TBEd. SE.008

Shaw Cablesystems G.P. (applicant) v. Society of Composers, Authors and Music Publishers of Canada (respondent) and CMRRA-SODRAC Inc. (intervenor)

(A-519-07)

Bell Canada, Rogers Communications Inc., Puretracks Inc. and Telus Communications Company (applicants) v. Society of Composers, Authors and Music Publishers of Canada (respondent) and CMRRA-SODRAC Inc. (intervenor)

(A-520-07)

Canadian Recording Industry Association (applicant) v. Society of Composers, Authors and Music Publishers of Canada (respondent) and CMRRA-SODRAC Inc. (intervenor)

(A-524-07; 2010 FCA 220; 2010 CAF 220)

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

Federal Court of Appeal

Létourneau, Nadon and Pelletier, JJ.A.

September 2, 2010.

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 on-line 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. Several Internet service providers, a musical download service and an industry association, each brought applications for judicial review.

The Federal Court of Appeal dismissed all three applications.

Copyright - Topic 3436

Fees, charges or royalties - Determination of - Communication to the public by telecommunication - At issue was whether the transmission of a musical work to an individual by an on-line music service was a communication of that work to the public by telecommunication (s. 3(1)(f) of the Copyright Act) - The Federal Court of Appeal, before beginning its analysis, made two preliminary observations - The first observation was the limited utility of prior jurisprudence dealing with what was a performance in public - Those cases were decided at a time when a musical work was the sheet music in which the work was described in musical notation - Certain comments made in that jurisprudence recurred in cases dealing with the nature of a communication to the public - Reliance upon that jurisprudence was not helpful - The second preliminary observation was that neither the court nor the Supreme Court of Canada decided in CCH Canadian Ltd. et al. v. Law Society of Upper Canada (2004) that "a series of repeated fax transmissions of the same work to numerous different recipients", in and of itself, amounted to a communication to the public - It was therefore an error to treat as settled law the proposition that a series of transmissions of a single work to multiple recipients amounted, in and of itself, to a communication to the public - See paragraphs 28 to 37.

Copyright - Topic 3436

Fees, charges or royalties - Determination of - Communication to the public by telecommunication - At issue was whether the transmission of a musical work to an individual by an on-line music service was a communication of that work to the public by telecommunication (s. 3(1)(f) of the Copyright Act) - The Federal Court of Appeal provided a framework to assist in the analysis of the jurisprudence relied on by the parties - "[T]here is authority to support the proposition that whether or not a communication is a communication to the public is a function of two factors: the intention of the communicator, and the reception of the communication by at least one member of the public. If those two conditions are met, then there has been a communication to the public" - The reference to "simultaneous" individual communications did not make simultaneity a condition of a communication to the public - As a result, there was a basis in the jurisprudence for the proposition that a private communication was not inconsistent with an intention to communicate to the public - See paragraphs 38 to 49.

Copyright - Topic 3436

Fees, charges or royalties - Determination of - Communication to the public by telecommunication - At issue was whether the transmission of a musical work to an individual by an on-line music service was a communication of that work to the public by telecommunications (s. 3(1)(f) of the Copyright Act) - The Federal Court of Appeal turned to the Supreme Court of Canada's decision in CCH Canadian Ltd. et al. v. Law Society of Upper Canada (2004) - The conclusion in CCH (that a single transmission of a single copy to a single individual was not a communication to the public) was made in a context where there was no evidence of an intention to communicate to the public; it was not authority for the proposition that no "point to point" communication could ever amount to a communication to the public - CCH's caveat (that a series of repeated transmissions of the same work to numerous different recipients might constitute a communication to the public) was best understood as a recognition that multiple transmissions of the same work could constitute evidence of an intention to communicate to the public and, if they did, such transmissions would constitute a communication to the public - CCH could be reconciled with this court's 2008 decision in Canadian Wireless Telecommunications Assoc. et al. v. Society of Composers, Authors and Music Publishers of Canada (there was evidence of an intention to communicate musical works to the public) - Finally, if there was an intention to communicate a work to the public, every communication of the work, starting with the first, was a communication to the public - See paragraph 62.

Copyright - Topic 3436

Fees, charges or royalties - Determination of - Communication to the public by telecommunication - The Copyright Board found that the transmission of a musical work to an individual by an on-line music service was a communication of that work to the public by telecommunication (s. 3(1)(f) of the Copyright Act), and thus was the proper subject for a tariff setting out the royalties payable for such a communication - The Federal Court of Appeal held that the Board's decision was reasonable - It was clear from the Board's reasoning that it had correctly identified intention as a critical factor by identifying the target group for the downloads as the public, defined as "an aggregation of individuals" - It was not necessary to define "the public" any further, in order to dispose of the judicial review application - It was also clear that, given the online music service's intended market, every transmission was a communication to the public, beginning with the first one - "As a result, the vexing problem of attempting to define quantitatively the boundary between private communications and communications to the public does not arise" - See paragraphs 63 to 65.

Cases Noticed:

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. [para. 5].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2002] 4 F.C. 3; 290 N.R. 131; 2002 FCA 166, refd to. [para. 8].

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 4 F.C. 213; 289 N.R. 1; 2002 FCA 187, consd. [para. 11].

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339; 317 N.R. 107; 2004 SCC 13, consd. [para. 11].

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; 2008 FCA 6, consd. [para. 17].

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. [para. 27].

Composers Authors & Publishers Association of Canada Ltd. v. CTV Television Network Ltd., [1968] S.C.R. 676, refd to. [para. 30].

CTV Television Network Ltd. v. Copyright Board (Can.) et al., [1993] 2 F.C. 115; 149 N.R. 363 (F.C.A.), refd to. [para. 30].

Canadian Cable Television Association v. Copyright Board (Can.), [1993] 2 F.C. 138; 151 N.R. 59 (F.C.A.), refd to. [para. 30].

Canadian Cable Television Association v. Copyright Board (Can.) (1991), 41 F.T.R. 1; 34 C.P.R.(3d) 521 (T.D.), refd to. [para. 46].

Telstra Corporation Ltd. v. Australasian Performing Rights Association Ltd. (1997), 38 I.P.R. 294 (Aust. H.C.), refd to. [para. 48].

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42 , sect. 3(1)(f) [para. 18].

Counsel:

J. Thomas Curry and Marguerite Ethier, for the applicant, in action no. A-524-07;

Gerald L. Kerr-Wilson and Anne Ko, for the applicant, in action no. A-519-07 and for the applicants, in action no. A-520-07;

Gilles Daigle and D. Lynne Watt, for the respondent, in all three actions;

Casey M. Chisick and Tim Pinos, for the intervenor, in all three actions.

Solicitors of Record:

Lenczner Slaght Royce Smith Griffin, Toronto, Ontario, for the applicant, in action no. A-524-07;

Fasken, Martineau DuMoulin LLP, Ottawa, Ontario, for the applicant, in action no. A-519-07, and for the applicants, in action no. A-520-07;

Gowling Lafleur Henderson LLP, Ottawa, Ontario, for the respondent, in all three actions;

Cassels Brock & Blackwell LLP, Toronto, Ontario, for the intervenor, in all three actions.

These three applications for judicial review were heard at Montréal, Quebec, on May 3, 2010, before Létourneau, Nadon and Pelletier, JJ.A., of the Federal Court of Appeal. In reasons for judgment written by Pelletier, J.A., the Court of Appeal delivered the following judgment at Ottawa, Ontario, on September 2, 2010.