The Supreme Court of Canada Copyright Pentalogy
Wednesday, December 7, 2011 by Sundeep Chauhan (Updated January 2013)
On December 6-7, 2011 the Supreme Court of Canada heard five copyright-related cases in respect of collective licensing. Each of the five matters related to applications from judicial review of decisions of the Copyright Board of Canada. The Copyright Board is an economic regulatory body empowered to establish the royalties to be paid fur the use of copyright-protected works in Canada which are licensed by collective societies. As questions from the panel of Supreme Court Justices caused many of the parties to deviate from their planned remarks, we provide a summary of the issues and links to the written submissions of the parties (where available). Streams of the proceedings are also available for viewing here.
Entertainment Software Association, et al. v. Society of Composers, Authors and Music Publishers of Canada
On October 24, 2008, the Copyright Board of Canada issued its decision in regards to SOCAN Tariff 22.G for the years 1996-2006. SOCAN was formed to administer, in Canada and on behalf of authors, composers, and music publishers, the rights to perform musical works in public and to communicate those works to the public by telecommunication. The Copyright Board set the royalties to be collected by SOCAN for the “communication to the public by telecommunication” of musical works contained in video games downloaded over the Internet. The Federal Court of Appeal upheld the decision (a copy of the decision can be found here).
The Supreme Court of Canada was asked by the Appellants, the Electronic Software Association (ESA) et. al., to determine whether the download of a video game - which includes music - is a communication of that music to the public by telecommunication within the meaning of paragraph 3(1)(f) of the Copyright Act of Canada. The second issue before the Supreme Court was whether a standard of reasonableness or a standard of correctness applies on judicial review of a Copyright Board decision.
The written submissions of the Appellants ESA et al. and the Respondent SOCAN can be found here:
Appellants - Entertainment Software Association et al.pdf
Respondent - Society of Composers, Authors and Music Publishers of Canada.pdf
In the proceeding, there were also three Interveners who were allowed to make written submissions. The Interveners were CMRRA/SODRAC Inc., the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and Cineplex Entertainment LP. The factum of Cineplex LP can be found here and the factum of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic can be found here.
UPDATE: The decision of the Supreme Court can be found here - Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34.
Rogers Communications Inc., et al. v. Society of Composers, Authors and Music Publishers of Canada
On October 18, 2007, the Copyright Board of Canada issued its decision concerning SOCAN Tariff 22.A for the years 1996-2006. The Copyright Board had set the royalties to be collected by SOCAN for the “communication to the public by telecommunication” via Internet download or stream of a musical work in Canada. The Federal Court of Appeal upheld the decision (a copy of the decision can be found here).
The Supreme Court was asked to determine whether the download or stream of a musical work is a communication of that musical work to the public by telecommunication within the meaning of paragraph 3(1)(f) of the Copyright Act of Canada. The second issue before the Supreme Court was the standard of review for interpreting paragraph 3(1)(f) of the Copyright Act of Canada.
The submissions of the Appellants Rogers Communications Inc., Rogers Wireless Partnership and Shaw Cablesystems G.P., Bell Canada and Telus Communications Company and Respondent SOCAN can be found here:
Appellants - Bell Canada et al.pdf
Respondent - Society of Composers, Authors, and Music Publishers of Canada.pdf
There were also four Intervener’s in the proceeding who were allowed to make written submissions. The Intervener’s were Apple Canada Inc. and Apple Inc., CMRRA/SODRAC Inc., Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and Cineplex Entertainment LP. The factum of Cineplex LP can be found here, the factum of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic can be found here.
UPDATE: The decision of the Supreme Court can be found here - Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35.
Re:Sound v. Motion Picture Theatre Associations of Canada, et al.
On May 31, 2008 Re:Sound’s proposed Tariff 7 - Motion Picture Theatres and Drive-Ins (2009-2011) and Tariff 9 - Commercial Television (2009-2013) were published in the Canada Gazette. Re:Sound (formerly the Neighbouring Rights Collective of Canada [NRCC]) is the Canadian not-for-profit music licensing company which collects “equitable remuneration” for recording artists and record companies in Canada. By way of a ruling on a Preliminary Issue, Tariffs 7 and 9 were struck by the Copyright Board on September 16, 2009 as having no legal foundation on which they could be certified. The Federal Court of Appeal upheld the decision of the Copyright Board.
The matter before the Supreme Court was a highly technical statutory interpretation question in respect of the definition of “sound recording” and whether recording artists and record companies are entitled to equitable remuneration under paragraph 19 of the Copyright Act when their music is included in a television program or in a motion picture.
The submissions of the Appellant Re:Sound and Respondents Motion Picture Theatre Associations of Canada, Rogers Communications Inc., Shaw Communications Inc., Bell Expressvu LLP, Cogeco Cable Inc., Eastlink, Quebecor Media, Telus Communications Company, Canadian Association of Broadcasters and Canadian Broadcasting Corporation can be found here:
Respondents - Rogers Communications Inc et al.pdf
Respondent - Motion Picture Theatre Associations of Canada.pdf
Respondent - Canadian Association of Broadcasters.pdf
Intimée - Société Radio Canada.pdf
There were also three requests for intervention but only that of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic was allowed. Their factum can be found here.
UPDATE: The decision of the Supreme Court can be found here - Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38.
Society of Composers, Authors and Music Publishers of Canada, et al. v. Bell Canada, et al.
The issue in this Appeal (also coming out of the Tariff 22.A decision for the years 1996-2006) to the Supreme Court was whether providing previews, consisting of excerpts of musical works can be considered fair dealing for the purpose of research which therefore does not infringe copyright. The case arose in the context of online music retailers selling downloads of songs and allowing users to preview the tracks before purchasing them. The Copyright Board decision was that previews of musical works fall under the fair dealing exemption of research and do not attract the payment of royalties to SOCAN. The Federal Court of Appeal upheld the decision of the Copyright Board of Canada.
The submissions of the parties can be found below:
Appellant - Society of Composers Authors and Music Publishers of Canada Redacted.pdf
Respondent - Apple Canada Inc.pdf
Respondents - Bell Canada et al.pdf
Respondent - CMRRA-SODRAC Inc.pdf
Respondent - Canadian Recording Industry Association.pdf
Respondent - Apple Canada Inc Supplemental.pdf
Intervener status was given to the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Canadian Association of University Teachers, the Federation of Law Societies of Canada and Canadian Legal Information Institute and the Computer & Communications Industry Association. The written submissions of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic can be found here.
UPDATE: The decision of the Supreme Court can be found here - Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36.
Province of Alberta as represented by the Minister of Education;, et al. v. Canadian Copyright Licensing Agency Operating as "Access Copyright"
On, June 26, 2009 the Copyright Board of Canada issued its decision with respect to the Access Copyright (Educational Institutions) Tariff 2005-2009. Access Copyright represents authors and publishers of literary and artistic works in printed materials that are subject to copying by photocopying and other forms of reproduction. The Copyright Board certified a tariff on the reproduction of materials for use in primary and secondary (K-12) level educational institutions, outside of Quebec. While the Federal Court of Appeal remitted portions of the decision back to the Copyright Board, they agreed with the Copyright Board’s decision with respect to fair dealing.
The submissions of the parties can be found here:
Appellants - Province of Alberta and Others.pdf
Respondent - Canadian Copyright Licensing Agency Operating as Access Copyright.pdf
Respondent - Canadian Copyright Licensing Agency Reply.pdf
Intervenors to the proceeding were Canadian Publishers' Council, Association of Canadian Publishers, and Canadian Educational Resources Council, Canadian Association of University Teachers and Canadian Federation of Students, Association of Universities and Colleges of Canada and Association of Canadian Community Colleges, CMRRA-SODRAC Inc., Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Canadian Authors Association, Canadian Freelance Union, Canadian Society of Children's Authors, Illustrators and Performers, League of Canadian Poets, Literary Translators' Association of Canada, Playwrights Guild of Canada, the Professional Writers Association of Canada and Writers Union of Canada and the Centre for Innovation Law and Policy of the Faculty of Law University of Toronto. The written submissions of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic can be found here.
The decisions of the Supreme Court are expected by the summer of 2012. Thus 2011 and 2012 promise to be groundbreaking years for Copyright in Canada with long-anticipated reform of the Copyright Act of Canada and five Supreme Court of Canada decisions that will determine the scope of numerous rights impacting thousands of creators and users.
UPDATE: The decision of the Supreme Court can be found here - Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37.
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