Authors-and-Music-Publishers-of-Canada

Court File No. 33921
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
BETWEEN:
ENTERTAINMENT SOFTWARE ASSOCIATION and ENTERTAINMENT
SOFTWARE ASSOCIATION OF CANADA
Appellant
- and SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF
CANADA
Respondent
RESPONDENT’S FACTUM
Gowling Lafleur Henderson LLP
Barristers and Solicitors
160 Elgin Street
Suite 2600
Ottawa, ON K1P 1C3
Henry S. Brown, Q.C.
Gilles M. Daigle
D. Lynne Watt
Matthew S. Estabrooks
Tel:
Fax:
(613) 233-1781
(613) 563-9869
Counsel for the Respondent
TO:
THE REGISTRAR
Barry Sookman
Steven G. Mason
Daniel Glover
McCarthy Tetrault LLP
TD Bank Tower PO Box 48
5300-66 Wellington St W
Toronto, ON M5K 1E6
Colin S. Baxter
Tel: (416) 362-1812
Fax: (416) 868-0673
Tel: (613) 569-8558
Fax: (613) 569-8668
Counsel for the Appellants ESA/ESAC
Agent for the Appellants ESA/ESAC
Cavanagh Williams Conway Baxter LLP
1111 Prince of Wales Drive
Suite 401
Ottawa, ON
K2C 3T2
TABLE OF CONTENTS
PART I - FACTS .................................................................................................. 1 A. B. C. D. Overview ........................................................................................ 1 Background .................................................................................... 4 Key Evidence ................................................................................. 7 i. The Internet Music Transmission Process ........................... 7 ii. Music Communication Rights in Foreign Jurisdictions ......... 8 SOCAN Reply to the Appellants on their Overview and
Concise Statement of Facts ........................................................... 9 PART II - POINTS IN ISSUE ............................................................................. 11 PART III - STATEMENT OF ARGUMENT ......................................................... 11 A. B. C. Issue 1: Standard of review .......................................................... 11 Issue 2: Is the Internet transmission of musical works (either
as full length tracks offered by online music services, or as a
component of video games offered by game sites) a
“communication” by telecommunication within the meaning
of s. 3(1)(f) of the Act? .................................................................. 12 i. SOCAN’s Position .............................................................. 12 ii. The Board’s First Internet Decision (Tariff 22 Phase 1
– Board) ............................................................................. 13 iii. The FCA’s Comments on the Board’s Decision ................. 14 iv. This Court’s Comments on Tariff 22 Phase 1 .................... 14 v. The Board’s Tariff 24 Ringtones Decision (“Tariff 24 Board”) ............................................................................... 15 vi. The FCA’s Comments on Tariff 24 - Board ........................ 16 vii. The Board’s Tariff 22.A Decision (Tariff 22.A – Board) ...... 17 viii. The Board’s Tariff 22.G Decision (Tariff 22.G – Board) ..... 18 ix. The FCA’s Comments on the Tariff 22.A and 22.G
Decisions ........................................................................... 18 x. Reply to the Appellants on the Interpretation of
“Communication” ............................................................... 19 Conclusion .................................................................................... 40 PART IV – SUBMISSIONS ON COSTS ............................................................ 40 PART V – ORDER REQUESTED ...................................................................... 40 PART VI – TABLE OF AUTHORITIES ............................................................... 41 PART VII – STATUTORY AUTHORITIES ......................................................... 43 1
PART I - FACTS
A.
Overview
1.
This is SOCAN’s response to the appeal by ESA and ESAC (the
“Appellants”), which seeks to overturn the Federal Court of Appeal’s
(“FCA”) decision – and, by implication, six decisions of the Copyright
Board and the FCA – that the Internet transmission of musical works via
the
Internet
constitutes
“communication
to
the
public
by
telecommunication” under paragraph 3(1)(f) of the Copyright Act.
2.
The Respondent SOCAN’s membership consists of the songwriters and
authors who create the musical works at issue. The Copyright Act secures
to these authors and creators the exclusive right to communicate their
works to the public by telecommunication. In order to do so, users such as
the Appellants require a licence from the Respondent. The Appellants
assert that they are entitled to profit from using the Respondent’s musical
works, but then claim that they have no obligation to obtain a licence to
communicate those works to the public by telecommunication.
3.
The Appellants’ interpretation would remove from the realm of copyright
protection not only musical works forming part of video games, but also a
much greater body of musical, literary, artistic and dramatic works, in a
manner that could not have been intended by Parliament and should be
rejected. The Appellants fail to appreciate that the 1988 amendments to
the Copyright Act were enacted to ensure technologically neutral
application of the communication right. The Appellants ignore both the
plain meaning of the statute as well as its contextual and purposive
interpretation.
4.
In this appeal and the Rogers appeal,1 the central issue is whether there
exists a valid statutory base for Tariffs 22.A and 22.G under the Copyright
Act (the “Act”). More specifically, the question is whether the Internet
1
Court File No. 33922. A third appeal, involving the issue of music previews and fair dealing is
also scheduled to be head on December 6, 2011.
2
activities of the Appellants (i.e., the Internet transmission of full length
musical works by Tariff 22.A online music services, and of video games by
Tariff 22.G game sites) constitute communications of SOCAN’s musical
works to the public by telecommunication, within the meaning of
paragraph 3(1)(f) of the Act.
5.
In this appeal, the Appellants focus on the “communication” issue, while
the appellants in the Rogers Appeal have focused on the “to the public”
aspect of paragraph 3(1)(f).
6.
The Board and the FCA have repeatedly recognized a valid statutory base
for SOCAN’s Internet tariffs, including Tariffs 22.A and 22.G. The Board
did so in four separate decisions, while the FCA reached the same
conclusion on three separate occasions, including its decision in Canadian
Wireless Telecommunications Association v. Society of Composers,
Authors and Music Publishers of Canada, for which an application for
leave to appeal to this Court was dismissed.
7.
More specifically, the Board and the FCA have held that the Internet music
uses at issue give rise to copyright liability because, as part of their
commercial operations, the copyright users in question communicate (i.e.,
they transmit or convey) information (musical works or substantial parts of
musical works in the form of electronic data packets) to the public (their
customers) by telecommunication (Internet transmission technology)
within the meaning of paragraph 3(1)(f). SOCAN agrees with these
determinations and submits this appeal should be dismissed.
8.
In the present appeal, the Appellants challenge the application of Tariff
22.G by claiming that the operators of Internet game sites do not
“communicate” musical works (or substantial parts thereof) within the
meaning of paragraph 3(1)(f) when they download video games containing
such works to their customers.
3
9.
SOCAN submits that this appeal should be dismissed for the following
reasons:
(a)
The Appellants’ interpretation of the Act is incorrect. Specifically,
their interpretation is counter to:
(i)
the basic principle that the reproduction, performance and
communication rights conferred upon copyright owners in
section 3 of the Act are separate and distinct rights;
(ii)
the intention of Parliament, particularly as expressed in 1988
and 1993 amendments to the Act, which broadened very
significantly the scope of paragraph 3(1)(f); and
(iii)
the
proper
interpretation
of
international
copyright
conventions as they relate to Canadian legislation and
foreign legislation applicable to the Internet transmission of
musical works in other countries.
(b)
By relying on ostensible differences between Internet downloading
and Internet streaming, the Appellants misapply the copyright
concept of technological neutrality.
(c)
The Appellants rely on cases that are no longer relevant as a result
of the above-noted amendments to the Act, and ignore relevant and
more recent cases that support the conclusions reached by the
Board and the FCA.
10.
Ultimately, the position advanced by the Appellants would require this
Court to read into the Act a new provision intended to define the concept
of “communication” in a new and greatly restrictive manner. According to
the Appellants, “communication” can only mean “to cause information in
humanly perceivable form to be imparted to another person for immediate
listening or viewing”. Nothing in the Act supports such a restrictive
4
interpretation. It is a forced interpretation that would result in the creation
of a new exception to copyright infringement, a matter that is reserved
solely for Parliament.
11.
In the context of the Internet, the Appellants’ interpretation would remove
from the realm of copyright protection under paragraph 3(1)(f) not only
musical works forming part of video games, but also a much greater body
of musical, literary, artistic and dramatic works, in a manner that would
require urgent remedial action by Parliament. It is an interpretation that the
statute simply cannot bear and that was correctly rejected by the
Copyright Board and the Federal Court of Appeal on several occasions.2 It
should be rejected by this Court as well.
B.
Background
12.
The Board’s first analysis of paragraph 3(1)(f) in the context of Internet
music uses was conducted as part of its determination of preliminary
jurisdictional and legal issues in the SOCAN Tariff 22 Phase 1 proceeding
(not Phase 2, as claimed by the Appellants). One of the key issues to be
decided by the Board in that case was whether the Internet transmission
of musical works to individual end-users constituted “communication to the
public” within the meaning of paragraph 3(1)(f). The Board answered that
question in the affirmative in a decision dated October 27, 1999, and in
doing so it dealt separately with the concepts of “communication” and “to
the public”. The Board’s conclusions in that regard were not challenged by
any of the parties in that proceeding.
13.
The matter was eventually the subject of an appeal before this Court. In
the resulting decision, dated June 30, 2004, the Court per Binnie J. agreed
with the Board’s ruling that a communication occurs when music is
transmitted from an Internet host server to an end user.
2
A chart outlining the various proceedings related to this appeal is included as Annex A to this
Factum.
5
14.
This Court’s disposition of the Tariff 22 Phase 1 matter allowed the Board
to proceed with Phase 2 to determine and certify the royalties to be paid
for the various Internet uses described in the tariff. Prior to conducting the
Phase 2 hearing, the Board held hearings on a separate SOCAN Internet
tariff relating to the download of musical works forming part of cell phone
ringtones (“Tariff 24”).
15.
In approving Tariff 24, the Board reiterated its previous analysis from Tariff
22 Phase 1 and concluded that its interpretation was as applicable to the
download of ringtones to cell phones as it was to the download of full
length musical works to a computer. In both cases, the Internet activities
constituted communications by telecommunication that were to the public
within the meaning of the Act.
16.
Tariff 24 was also the subject of judicial review proceedings in the FCA,
where the appellants made the same arguments that the Appellants now
make in the present appeal. The FCA agreed with the Board that the
download of a ringtone via the Internet constitutes a communication to the
public, as had also been determined in the Tariff 22 Phase 1 case.
Essentially, the Court found that the meaning of the word “communication”
proposed by the appellants was too narrow.
17.
The Board subsequently proceeded with its Tariff 22 Phase 2 hearing,
which took place in 2007. That hearing gave rise to two separate
decisions by the Board, each with its own set of reasons. The Tariff 22.A
decision, for online music services that download full length musical works
and previews to their customers, was issued on October 18, 2007. That
decision, as reviewed by the FCA, is now the subject of the Rogers
Appeal.3 The Tariff 22.B-G decision, for other Internet music uses, was
issued by the Board on October 25, 2008. It is that decision (the part
dealing with Internet game sites – item 22.G), as also reviewed by the
3
And, as noted above, the fair dealing appeal.
6
FCA, that is the subject of the present appeal.
18.
The Appellants were parties to the hearing that resulted in the Board’s
Tariff 22.A and 22.G decisions. They took the position that the Internet
download of video games containing musical works did not constitute a
communication to the public of those works. In its Tariff 22.A reasons, the
Board rejected the Appellants’ position and expanded upon its prior
determinations that the Internet download of a musical work by online
music services (and, by extension, video game sites) constitutes a
“communication” within the meaning of paragraph 3(1)(f).
19.
As
acknowledged
by
the
Appellants
at
paragraph
22
of
their
memorandum, the Board stated that the legal principles it examined in its
Tariff 22.A reasons apply equally to the Internet activities addressed in its
Tariff 22.B-G decision. Accordingly, there was no reason for the Board to
further discuss whether video game downloads were a communication to
the public, having found that its Tariff 22.A conclusions in the context of
online music services applied equally to Tariff 22.G game sites.
20.
The Board’s Tariff 22.A and 22.G decisions were both the subject of
judicial review in the FCA. While the Appellants argued their position on
the communication issue in their factum, they did not deal with the matter
in oral argument before the Court other than to adopt the submissions of
the Rogers appellants.4 Ultimately, the FCA agreed with the Board that the
Act provides a valid statutory base for Tariffs 22.A and 22.G, and that the
Internet transmission of musical works by online music services to their
customers, as well as the Internet transmission of video games containing
musical
works,
constitute
communications
to
the
public
telecommunication within the meaning of paragraph 3(1)(f) of the Act.
4
They, however, only addressed the “to the public” issue, not the “communication” issue.
by
7
C.
Key Evidence
i.
The Internet Music Transmission Process
21.
A technical description of the Internet transmission process, generally and
in the specific case of music, was presented to the Board by SOCAN
expert witnesses Clark (Tariff 22 Phase 1), as well as Jurenka and Hoffert
(Tariff 22 Phase 1 and Phase 2).5
Report of David D Clark at T22 (Phase 1) Hearing, Respondent’s Record
[RR] at 11.
Report of Tom Jurenka at T22 (Phase 1) Hearing, RR at 60.
Supplemental Report of David D Clark, RR at 93
Supplemental Report of Tom Jurenka, RR at 106.
Report of Tom Jurenka at T22 (Phase 2) Hearing, RR at 122.
Report of Paul Hoffert at T22 (Phase 2) Hearing, RR at 144.
22.
The Board made several findings of fact based on that evidence, which
can be summarized as follows:
(a)
The Internet is a telecommunications network, the purpose of which
is to transmit files containing data, including music as that term is
commonly understood. A transmission occurs when the following
series of events takes place: (1) the music file is incorporated
(posted) to an Internet-accessible server; (2) upon request and at a
time chosen by the recipient, the file is broken down into packets
and transmitted from the host server to the recipient’s server, via
one or more routers; and (3) the recipient, usually using a
computer, can reconstitute and open the file upon reception or save
it to open it later.
SOCAN - Tariff 22 [Phase I: Legal Issues], Copyright Board Decision dated
October 27, 1999 (“Tariff 22 Phase 1 – Board”) Respondent’s Authorities
[RA] Tab 7 at 25.
(b)
There is no technical difference between the transmission of
musical works by downloading or by streaming. Both are broken
5
The evidence presented by SOCAN in the Board’s Tariff 22 Phase 1 hearing was made part of
the record in the Phase 2 proceedings. Jurenka and Hoffert also testified in the Tariff 24
(ringtones) hearing.
8
down into packets and transmitted, on request, to each end user
individually, in separate transmissions and at different times.
Neither is audible during the communication. Both must be stored,
even if only temporarily, before they can be played. The only
difference is that a stream is programmed to appear to be erased
as it is played, while a permanent download is not.
SOCAN Tariff No. 22.A – Internet – Online Music Services (1996-2006),
Copyright Board Decision dated October 18, 2007 (“Tariff 22.A – Board”)
Appellants’ Record [AR] Tab 2 at para 95
23.
Based on this evidence, the Board maintained its conclusion that the
Internet transmission of a musical work, either by way of downloading or
streaming, constitutes the communication of that work to the public by
telecommunication within the meaning of paragraph 3(1)(f). For the
reasons set out further below in SOCAN’s Part III submissions, SOCAN
maintains that the Board’s interpretation was and remains correct.
ii.
Music Communication Rights in Foreign Jurisdictions
24.
During the Board’s Tariff 22 Phase 2 proceedings, the evidence presented
by the Objectors to SOCAN’s tariff proposals established categorically
that, in addition to reproduction rights, online music services that conduct
business in foreign countries are also required to pay communication or
performance rights for the download of musical works over the Internet.
Those countries include the U.K., France, Germany, Italy, Australia,
Japan, Argentina, Austria, Belgium, Brazil, Denmark, Finland, Hong Kong,
Malaysia, the Netherlands, Norway, Singapore, the Slovak Republic,
Spain, Sweden, Taiwan and Thailand.
Witness Statement of Geoffrey Michael Taylor, (Public Version), RR at 178.
25.
At the time, the United States was also on the list. However, as discussed
below, the communication right issue has been the subject of debate in
9
the U.S., which debate continues in the courts.6
D.
SOCAN Reply to the Appellants on their Overview and Concise
Statement of Facts
26.
A number of points raised in Sections A and B of the Appellants’
memorandum are either incorrect or require clarification:
(a)
The Appellants claim that the Tariff 22.G decision of the FCA
“…will, in effect, create an extra layer of rights that only applies to
the distribution of copies of works delivered digitally” (para. 2).
There is no basis for that claim. Section 3 of the Act clearly
describes all of the rights that are available to copyright owners.
The FCA’s decision has not and cannot add to or remove any of
those rights. Video game merchants will continue to be liable only
for those rights that they engage in the course of their business
activities.
Tariff 22.A – Board, AR Tab 2 at paras 99-100.
(b)
The Appellants refer to no evidence whatsoever (and there is no
evidence) in support of their claim at para. 2 that the FCA’s
decision will result in unnecessarily increased costs for Canadians
to purchase copyright works such as music, movies, books, and
games via the Internet.
(c)
Nor is there any basis for the Appellants’ claim at para. 4 that the
FCA decision allows SOCAN to charge royalties for copies of video
games. SOCAN does not administer the making of copies of
musical works. Its interest in this matter lies only in the use of
musical works when they are communicated to the public, either as
full length musical tracks or as part of audio-visual material such as
video games or film and television programs.
6
The matter is now before the Supreme Court of the United States: Docket No. 10-1337.
10
(d)
There is no evidence in support of the Appellants’ claim at para. 17
that music forms a very small proportion of video games. In fact,
the Appellants presented no evidence whatsoever on the amount of
music forming part of video games. Their only evidence was on the
relative cost of commissioning the production of music for its
inclusion (reproduction) in video games by comparison to other
programming inputs, which has no bearing on the amount or role of
the music in any given game.
Cross-Examination of Jaap Tuinman and Maria Luisa Simpson, Transcript
of Proceedings before the Copyright Board, Vol 11, May 2, 2007, RR at 7-8.
(e)
Also irrelevant is the further suggestion by the Appellants at para.
17 that video game purchasers are free to lower the volume of
music or to deactivate music playback entirely. The fact that this
may be possible tells nothing about the extent to which, if any,
purchasers actually do so. It also has nothing to do with the
communication issue at hand (unless the Appellants are suggesting
that, because the sound can be turned down on a radio or
television set, SOCAN should not be entitled to compensation for
the use of music by radio and television stations, which would be
absurd).
(f)
The Appellants’ contention at para. 18 that no music is transmitted
on the Internet in the case of multi-player games is also irrelevant,
as a tariff would continue to be required for games other than multiplayer games.
(g)
The Appellants’ indication at para. 19 that their members clear
rights to reproduce musical passages within their games in
advance of publication (para. 19) is again of no relevance, because
reproduction rights are separate and apart from SOCAN’s
communication rights that are the rights at issue in the present
appeal.
11
PART II - POINTS IN ISSUE
27.
SOCAN submits that the points in issue in this appeal are:
(a)
What is the standard of review?
(b)
Is there a statutory basis for a SOCAN tariff for the Internet
transmission of musical works forming part of video games? More
specifically, is the Internet transmission of musical works (either as
full length tracks offered by online music services or in video games
offered by game sites) a “communication” within the meaning of
paragraph 3(1)(f) of the Act?
PART III - STATEMENT OF ARGUMENT
A.
Issue 1: Standard of review
28.
When an administrative board is applying its home statute to the particular
facts before it, a reviewing court ought to show deference to the decision.
The Copyright Act is the Board’s home statute and one with which the
Board has considerable expertise. Even if paragraph 3(1)(f) is a law of
general application, it is one which lies squarely within the particular
expertise of the Board. The provisions at issue are “intimately connected
with the mandate of the tribunal and encountered frequently as a result.”
The Board has on numerous occasions considered the meaning of
“communication to the public” in the context of full hearings and with the
benefit of full evidentiary records. On each occasion, the Board came to
the same conclusion. Accordingly, the FCA correctly held that this
accumulated experience and familiarity with the application of paragraph
3(1)(f) to the facts involved in this case warranted deference to the
Board’s decision. In any event, the decision of the Board was correct.
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, Appellants’
Authorities [AA] Tab 16 at para 54.
Nolan v Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 SCR 678, RA Tab 6 at
para 34.
Canada (Attorney General) v Professional Institute of the Public Service of
Canada, 2010 FC 728, RA Tab 1 at paras 27-28.
12
Toronto Board of Education v Ontario Secondary School Teachers’
Federation, District 15, [1997] 1 SCR 487, RA Tab 10.
B.
Issue 2: Is the Internet transmission of musical works (either as full
length tracks offered by online music services, or as a component of
video games offered by game sites) a “communication” by
telecommunication within the meaning of s. 3(1)(f) of the Act?
i.
SOCAN’s Position
29.
The Board and the FCA correctly interpreted the term “communicate” in
paragraph 3(1)(f) of the Act when they concluded that the transmission of
musical works over the Internet by online music services and other
Internet entities, including video game sites, results in the communication
of musical works to the public by telecommunication within the meaning of
the Act.
30.
Paragraph 3(1)(f) of the Act reads as follows:
3(1) For the purposes of this Act, "copyright", in relation to a work, means
the sole right to produce or reproduce the work or any substantial part
thereof in any material form whatever, to perform the work or any
substantial part thereof in public or, if the work is unpublished, to publish
the work or any substantial part thereof, and includes the sole right
(a) – (e),
(f) in the case of any literary, dramatic, musical or artistic work, to
communicate the work to the public by telecommunication,
(g) – (i),
and to authorize any such acts. (Emphasis added)
Copyright Act, RSC 1985, c C-42, AA Tab 56 at s 3.
31.
The following section 2 definitions are also in issue:
"musical work" means any work of music or musical composition, with or
without words, and includes any compilation thereof;
"performance" means any acoustic or visual representation of a work,
performer's performance, sound recording or communication signal,
including a representation made by means of any mechanical
instrument, radio receiving set or television receiving set;
"telecommunication" means any transmission of signs, signals, writing,
images or sounds or intelligence of any nature by wire, radio, visual,
optical or other electromagnetic system.
13
Copyright Act, RSC 1985, c C-42, AA Tab 56 at s 2.
32.
The interpretation of a statute begins with the ordinary meaning of the
words used. The term “communicate", which is not defined in the Act,
means to transmit, impart, make known or convey information. The
concept of communication is thus very broad. When the words of a
provision are precise and unequivocal, the ordinary meaning of the words
play a dominant role in the interpretive process.
Celgene Corp v Canada (Attorney General), 2011 SCC 1, [2011] 1 SCR 3, RA
Tab 2 at para 21.
33.
The Appellants’ contend that the plain meaning of “communicate” ought to
be rejected in favour of the artificially restricted definition of “causing of
information in humanly perceivable form to be imparted to another person
for immediate listening or viewing.” This is a forced interpretation that the
word simply cannot bear.
ii.
The Board’s First Internet Decision (Tariff 22 Phase 1 – Board)
34.
One of the key issues to be decided by the Board in that case was
whether the Internet transmissions of musical works to individual endusers constituted “communications to the public” within the meaning of
paragraph 3(1)(f). The Board concluded in the affirmative and, in dealing
with the requirement that a “communication” take place, stated the
following:
1. Internet transmissions are communications
To communicate is to make known or convey information. A musical
work is information. It is communicated when it is conveyed or made
known to someone. For example, a musical work is communicated when
its notation is published in a newspaper. It is also communicated when
packets of data are transmitted over the Internet so that once
reassembled, they allow the work to be performed, copied or otherwise
conveyed or made known to the recipient.
Internet transmissions remain communications within the meaning of the
Act even though they also involve, or result in, one or more transitory or
permanent reproductions. A single activity may give rise to liability under
more than one head of subsection 3(1) of the Act. Thus, a facsimile
transmission results in a communication even though it involves a
14
reproduction.
Tariff 22 Phase 1 – Board, RA Tab 7 at 28 [footnotes omitted].
35.
The Board’s interpretation of the term “communicate” in the Tariff 22
Phase 1 Decision was not challenged by any of the parties in that
proceeding, including the trade associations that represented the
appellants in the Rogers Appeal.
iii.
The FCA’s Comments on the Board’s Decision
36.
While the Board’s interpretation of the term “communicate” was not
specifically the subject of judicial review. Nonetheless, Evans J.A. made
the following statement, which accords entirely with the Board’s
conclusion on the meaning of “communication”, and is counter to the
position advanced by the Appellants in this appeal:
[174] [...] even when end users receive data in a form that requires
them to open the file to listen to the music after downloading it to their
hard drive, the music is communicated when it is received on the
computer of the end user who requested its transmission, whether or not
it is in fact ever heard.
Society of Composers, Authors and Music Publishers of Canada v
Canadian Assn. of Internet Providers, 2002 FCA 166, [2002] 4 FC 3 (“Tariff
22 Phase 1 – FCA”), RA Tab 9 at para 174.
iv.
This Court’s Comments on Tariff 22 Phase 1
37.
The FCA’s decision was eventually the subject of an appeal before this
Court. In the resulting decision, the Court per Binnie J. commented on the
very broad scope of paragraph 3(1)(f), as a whole, in the following terms.
In doing so, the Court clearly agreed with the conclusions expressed by
the Board and the FCA on the broad scope of the communication right:
It is an infringement for anyone to do, without the consent of the
copyright owner, “anything that, by this Act, only the owner of the
copyright has the right to do” (s. 27(1)), including, since the 1988
amendments, the right “to communicate the work to the public by
telecommunication …. and to authorize any such acts” (s. 3(1)(f)). In the
same series of amendments, “telecommunication” was defined as “any
transmission of signs, signals, writings, images or sounds or intelligence
of any nature by wire, radio, visual, optical or other electromagnetic
system” (s. 2). The Board ruled that a telecommunication occurs when
the music is transmitted from the host server to the end user. I agree with
15
this. […]
At the end of the transmission, the end user has a musical work in his or
her possession that was not there before. The work has necessarily
been communicated, irrespective of its point of origin. If the
communication is by virtue of the Internet, there has been a
“telecommunication”. To hold otherwise would not only fly in the face of
the ordinary use of language but would have serious consequences in
other areas of law relevant to the Internet, including Canada’s ability to
deal with criminal and civil liability for objectionable communications
entering the country from abroad. [Emphasis added]
Society of Composers, Authors and Music Publishers of Canada v
Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 SCR 427
(“Tariff 22 Phase 1 – SCC”), AA Tab 29 at paras 42, 45.
v.
The Board’s Tariff 24 Ringtones Decision (“Tariff 24 - Board”)
38.
As in the case of Tariff 22.A musical works and Tariff 22.G video games
containing musical works, ringtones for cell phones can be purchased and
downloaded over the Internet. In 2002, SOCAN filed Tariff 24 for musical
ringtones and it was the subject of a hearing before the Board.
39.
While all of the Objectors to Tariff 24 conceded before the Board that the
Internet transmission of a ringtone to a mobile phone customer constitutes
a “communication” of a musical work within the meaning of paragraph
3(1)(f), they took the position that the communication was not “to the
public”.
40.
In approving Tariff 24, the Board reiterated its previous analysis from Tariff
22 Phase 1 and concluded that its interpretation was as applicable to the
download of ringtones to cell phones as it was to the download of full
length musical works to a computer. In both cases, the Internet activities
constituted communications that were to the public within the meaning of
paragraph 3(1)(f) of the Act.
Tariff No. 24 – Ringtones (2003-2005), Copyright Board Decision dated
August 18, 2006 (“Tariff 24 – Board”), RA Tab 8 at para 51.
41.
The Board’s reasoning was supported in all respects by the factual
evidence before it, including the technical evidence presented by the
16
SOCAN expert witnesses.7 The fact that the musical ringtones were
downloaded to a cell phone rather than downloaded or streamed to a
computer was irrelevant. In all cases the transmissions served the same
purpose of moving the file electronically from facilities controlled by the
supplier of the audio file to those of the person requesting it, by
transmitting packets of digital binary data from a website to a receiving
device.
Tariff 24 – Board, RA Tab 8 at para 56.
vi.
The FCA’s Comments on Tariff 24 - Board
42.
On judicial review of Tariff 24, the appellants made the very same
arguments as the Appellants now make in the present appeal. However,
the FCA rejected that position and agreed with the Board that the
download of a ringtone on the Internet constitutes a communication to the
public within the meaning of paragraph 3(1)(f). In doing so, the FCA made
the following comments in regard to the “communication” issue:
[19]
In my view, the applicants are proposing a meaning of the
word “communication” that is too narrow. The word “communication”
connotes the passing of information from one person to another. A
musical ringtone is information in the form of a digital audio file that is
capable of being communicated. The normal mode of communicating a
digital audio file is to transmit it. The wireless transmission of a musical
ringtone to a cellphone is a communication, whether the owner of the
cellphone accesses it immediately in order to hear the music, or at some
later time. The fact that the technology used for the transmission does
not permit the cellphone owner to listen to the music during the
transmission does not mean that there is no communication. In my view,
in the context of a wireless transmission, it is the receipt of the
transmission that completes the communication.
Canadian Wireless Telecommunications Association v SOCAN, 2008 FCA 6
(“Tariff 24 – FCA”), AA Tab 7 at paras 19-20.
43.
Sharlow J.A. proceeded to note that her conclusion accorded with the
comment of this Court per Binnie J. in Tariff 22 – Phase 1 (quoted above
in paragraph 37) which she described as being “undoubtedly a true
7
See paragraphs 21-22 above.
17
statement”.
vii.
The Board’s Tariff 22.A Decision (Tariff 22.A – Board)
44.
As noted in the overview, Tariff 22.A is the companion case to the Tariff
22.G matter in the present appeal. While the Board issued two sets of
reasons, both were based on the evidence from a single hearing before
the Board. It was the third occasion on which the Board would confirm its
view that paragraph 3(1)(f) of the Act provides a valid statutory base for a
tariff for the Internet transmission of musical works, including downloads.
45.
At the hearing, the Appellants took the position that the Internet download
of games containing music did not constitute communication to the public.
In its Tariff 22.A reasons, the Board rejected the Appellants’ position, and
expanded upon its prior determinations that the Internet download of a
musical work by online music services (and, by extension, game sites)
constitutes a “communication” within the meaning of paragraph 3(1)(f):
[94] First, the transmission of a download over the Internet
communicates the content of the download. Arguments advanced to
challenge the proposition that the transmission of a download does not
involve a communication are neither convincing nor relevant. The
statement of the Supreme Court of Canada according to which a work
has necessarily been communicated once the end user possesses a
musical work that was not there before, clearly targets downloads, not
streams. The statement of the Federal Court of Appeal according to
which “music is communicated when it is received on the computer of the
end user who requested its transmission, whether or not it is in fact ever
heard”, makes it clear that music that cannot be heard at the time of
transmission (i.e., a download, not a stream) is communicated
nevertheless. Both statements support the proposition that a work is
communicated even if it is not used or heard at the time of the
transmission or indeed ever.
[95] Attempts to distinguish streams from downloads are based on
technical and legal assumptions that are incorrect. Both are broken down
into packets and transmitted, on request, to each end user individually, in
separate transmissions and at different times. (Board FN 21) Neither is
audible during the communication. Both must be stored, even if only
temporarily, before they can be played. The only difference is that a
stream is programmed to appear to be erased as it is played, (Board FN
22) while a permanent download is not. (Board FN 23). If the
transmission of a download does not involve a communication, then
neither does the transmission of a stream. This would mean that CBC
does not communicate the news items it posts for later webcasts or the
18
contents of its broadcast signal when it is simulcast. This would also
mean that none of the items in proposed Tariff 22 has any legal
foundation whatsoever.
[96] Therefore, from a copyright perspective, common sense dictates
that the content of a download is communicated when it is received,
whether or not it is ever used, just as the content of a fax is
communicated when it is received, whether or not it is ever read. CCH
Canadian makes it clear that any fax transmission is a communication,
whether private or public. Since a fax transmission normally results in the
delivery of a physical copy, a fortiori the delivery of a digital copy (the
download) must also involve a communication. (Board FN 24)
Tariff 22.A – Board, AR Tab 2 at paras 94-96.
viii.
The Board’s Tariff 22.G Decision (Tariff 22.G – Board)
46.
The Board thus rejected the Appellant’s “communication” arguments in its
Tariff 22.A decision. It also rejected most of the Appellants’ other
arguments in its Tariff 22.G decision, including the suggestion that the
applicable tariff rate should be reduced to reflect other factors, including
music production costs related to the development of video games.
Tariff Nos. 22.B to 22.G (Internet – Other Uses of Music), Copyright Board
Decision dated October 24, 2008 (“Tariff 22.G – Board”) AR Tab 3 at paras
99-107.
ix.
The FCA’s Comments on the Tariff 22.A and 22.G Decisions
47.
The FCA agreed with the Board that the Act provides a valid statutory
base for Tariffs 22.A and 22.G, and that the Internet transmission of
musical works by online music services to their customers, as well as the
Internet transmission of video games containing musical works, constitute
communications to the public by telecommunication within the meaning of
paragraph 3(1)(f) of the Act. The FCA also refused to interfere with the
conclusions of the Board relating to the tariff formula to be used for
calculating the royalties payable by game sites for their use of music.
48.
Based on the above analyses of the Board, the FCA and of this Court,
SOCAN submits that the Board correctly interpreted the paragraph 3(1)(f)
concept of “communication” in the context of all Internet transmissions of
musical works, including those from video game sites.
19
x.
Reply to the Appellants on the Interpretation of “Communication”
49.
Reply is made by reference to the Appellants’ sub-titles and paragraph
numbers.
a.
Interpretive Principles (paras. 33 to 38)
50.
The proper interpretation of the Act in the context of Internet music uses
was specifically at issue in Tariff 22 Phase 1 – SCC:
This Court has recently described the Copyright Act as providing “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 (or, more accurately, to prevent someone other
than the creator from appropriating whatever benefits may be
generated)” […] The capacity of the Internet to disseminate “works of the
arts and intellect” is one of the great innovations of the information age.
Its use should be facilitated rather than discouraged, but this should not
be done unfairly at the expense of those who created the works of arts
and intellect in the first place. [Emphasis added]
Tariff 22 Phase 1 – SCC, AA Tab 29 at para 40.
51.
Ordinary words in the Act are to be interpreted as understood in ordinary
speech and should not be given a sense that is at odds with their most
familiar meaning, particularly when “this would further erode copyright
holders' right to be compensated for the use of their works by others”.
Tariff 22 Phase 1 – FCA, RA Tab 9 at para 135.
52.
The arguments advanced by the Appellants are counter to these principles
of interpretation and, if accepted, would not only erode copyright holders’
rights to compensation for the communication of their works, but would in
fact completely eliminate their right to such compensation for both present
and future uses of their music in several important respects. In fact, all
current and future copyright works that are transmitted on the Internet in a
manner that does not result in the immediate listening or viewing upon
reception would be excluded from protection under section 3(1)(f).
53.
This broad restriction would apply not only to SOCAN’s musical works, but
to all types of works protected under the Act, including literary works
20
(which include computer programs), musical, artistic and dramatic works
(including movies and television programs). In the case of SOCAN, there
would be no legal basis for retaining or continuing to collect royalties for
the Internet transmission of musical works by popular downloading
services such as iTunes, Puretracks, Napster and ArchambaultZiq under
Tariff 22.A, ringtones under Tariff 24, and other audio and audio-visual
downloads presently covered by Tariffs 22.B-G.
54.
In addition, current uses of music in traditional media for which
commercial entities have been paying communication royalties to SOCAN
for years would suddenly find themselves without any legal obligation to
continue to pay those fees and would undoubtedly seek refunds for past
periods. For example, under Tariff 17, cable and satellite companies pay
royalties to SOCAN for their transmission of music in specialty and pay
television services, including videos-on-demand. Unlike conventional pay
and pay-per-view programs that are transmitted at pre-determined times
by the distribution undertaking, videos-on-demand need not be viewed at
the moment of their initial transmission to the subscriber. They involve
point-to-point communications that can be viewed at a time chosen by the
subscriber and, in some cases, can be viewed any number of times over a
set period.8 Clearly, it would be counter to the intention of Parliament that
these long-standing uses of music suddenly find themselves without
copyright protection.
b.
Legislative History of s. 3(1)(f) (paras. 39 to 61)
55.
In their memorandum, the Appellants correctly acknowledge that: (a)
paragraph 3(1)(f) of the Act and Article 11bis of Berne (Paris) Convention
are intended to be technologically neutral provisions (paras 2 and 60); (b)
in amending the Act, the Canadian government recognized that
technology could evolve in unpredictable ways (para 50); and (c)
8
In fact, the same can be said of any type of television program, in that modern video recording
systems also allow users to record and view programs later at any time of their choosing.
21
Parliament’s amendments to paragraph 3(1)(f) were intended to expand
the right of public performance (para 50).
56.
However, the Appellants then proceed inconsistently to argue that
paragraph 3(1)(f) should not apply in the case of Internet downloading of
musical works. They make this allegation despite the fact that
downloading is merely one of a number of different technological means of
transmitting musical works to recipients - the very type of new and
unpredictable technology that Parliament sought to address when it
proceeded to amend the Act in 1988 (and later in 1993). The Appellants’
interpretation is at odds with the concept of technical neutrality and the
intention of Parliament to amend the statute in a manner that would
significantly broaden the scope of paragraph 3(1)(f) for copyright owners,
so as to not deprive them of their rights based on the use of a given
technology, including new and unpredictable technologies such as the
Internet.
The 1988 Amendments
57.
The right of communication to the public by telecommunication was
introduced in the Act in an effort to overcome the limits of statutory
language tied to a particular technology, i.e., conventional broadcasting.
The 1988 amendments thus changed paragraph 3(1)(f) by removing in its
entirety the term communicate “by radio-communication”. The word “radio”
was also removed from the Act’s definition of “performance” and the term
“telecommunication” was added and defined in the broadest possible
terms. These changes made it clear that these provisions would no longer
be restricted to conventional broadcasting activities. They served to
implement the new cable and satellite retransmission royalty regime
contemplated by the Canada – U.S. Free Trade Agreement, but they were
also intended to make paragraph 3(1)(f) technologically neutral in order to
avoid the necessity of making further amendments upon the advent of yet
22
new technologies in the future.
58.
SOCAN submits that the Internet constitutes that very type of new and
then unknown technology. Internet transmission represents now what
cable retransmission represented in the 1960s. The 1988 amendments
rendered paragraph 3(1)(f) technologically neutral for the very purpose of
avoiding the type of litigation now being pursued by the appellants in this
and the Rogers Appeal. If, in 1988, Parliament had truly intended to limit
the application of amended paragraph 3(1)(f) to communications “that
cause information in humanly perceivable form to be imparted to another
person for immediate listening or viewing”, it would have provided express
limitations to that effect, either directly in paragraph 3(1)(f), in the definition
of “performance” or “telecommunication” or as part of the exceptions to
copyright infringement.
59.
Parliament also had every opportunity to do so as part of subsequent
amendments to the Act, including the copyright amendment process of
1993 (the “SOCAN Bill”) which, as discussed below, had the effect of
further broadening the scope of the communication right in relation to
musical works; significant amendments in 1997 that created new
remuneration rights for the communication of sound recordings and
performers’ performances; and yet further amendments in 2002 (Bill C11), which related specifically to Internet issues (i.e., Parliament restricted
the scope of permissible retransmissions on the Internet). Instead,
Parliament chose to expand the rights of musical work owners – not
restrict them.
The 1993 Amendments (the “SOCAN Bill”)
60.
The Appellants make only a passing reference to the significant
amendments made to the Act in 1993, which they describe as “technical”
and intended to ensure that SOCAN would receive retransmission
royalties. That is incorrect. The Board had already concluded in 1990 that
23
SOCAN was entitled to receive retransmission royalties from cable and
satellite operators. Subsequently, the Federal Court and the FCA
confirmed that cable operators were required to pay royalties to SOCAN
for their transmission of musical works in pay and specialty television
services.
61.
As discussed further below, the 1993 amendments were made to
overcome the results of the CTV cases, in which the courts had stated that
they were not unsympathetic to SOCAN’s position, but were unable to
address the matter in the absence of amendments by Parliament.
Parliament responded accordingly with the 1993 amendments and the
CTV cases have been irrelevant since that time.
The International Context
62.
International treaties and agreements represent minimum requirements
and do not preclude any signatory country from adopting greater
protections in their domestic legislation. Nor are signatories required to
use the same terms as those found in the relevant treaties or those
adopted by other countries for implementation in their domestic legislation.
Article 19 of Berne, AA Tab 52.
S. Ricketson & J. Ginsburg, International Copyright and Neighbouring
Rights - The Berne Convention and Beyond, 2d ed, Vol 1 (Oxford: Oxford
University Press, 2006) (“Ricketson”), AA Tab 46 at 301, para 6.80 and
following.
63.
The Appellants rely on excerpts from the NAFTA agreement in support of
their position that a communication of a work requires a public that is
“…capable of perceiving, communications or performances of works”
(para 54). Yet Parliament never saw fit to amend the Act to include this
limitation, notwithstanding several opportunities to do so as part of
subsequent amendment processes.
64.
As noted in above, a full panoply of Berne member countries, including the
U.K., France, Germany and Italy, to name but a few, recognize that the
24
Internet transmission of musical works requires separate compensation
over and above any compensation received for reproduction rights. Other
than in the United States, where the issue remains the subject of judicial
debate, SOCAN’s sister societies around the world are entitled to royalties
for the communication of their musical works on the Internet in addition to
any amounts payable for reproduction rights. There is no basis for
suggesting that Parliament intended a different result for Canada.
65.
Internationally, the advent of Internet transmissions gave rise to questions
as to the type of copyrights they involve, i.e., the reproduction right, the
communication right or a combination of both. Eventually, the World
Intellectual Property Organization (WIPO) Copyright Treaty (“WCT”),
through article 8, established a compromise:
Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii),
11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of
literary and artistic works shall enjoy the exclusive right of authorizing
any communication to the public of their works, by wire or wireless
means, including the making available to the public of their works in such
a way that members of the public may access these works from a place
and at a time individually chosen by them.
WIPO Copyright Treaty, 20 December 1996, WCT, RA Tab 11 at Art 8.
66.
It has been remarked that several signs point to the conclusion that the
above article “certainly does seem to establish a right within the family of
the performance right rather than the reproduction right.”
Y. Gendreau, “The Reproduction Right and Internet” (1998) 178 R.I.D.A. 3,
RA Tab 3 at 58.
67.
There is no definition of the terms “communication” and “to the public”
within Berne, and the requirement of a “communication to the public” has
already been interpreted in a broad and progressive manner in order to
cover transmissions by satellite, a significant evolution in communication
technology that was not contemplated in 1948 under article 11bis. Nothing
in the concept of “communication to the public” excludes downloading. In
every instance of an Internet transmission, be it a download or a stream,
25
there is a transmission of content from a website to a user, as intended by
the content provider.
Ricketson, AA Tab 46 at 727 and 742, para 12.48; 743, para 12.51; and 746,
para 12.57.
68.
As noted above (and conceded by the Appellants), the 1988 amendments
to paragraph 3(1)(f) resulted in the drafting of technologically neutral
terms. As a result of this technologically neutral language, it has been said
that
the
Canadian
right
of
communication
to
the
public
by
telecommunication is already in compliance with the making available right
of the WCT for the purpose of protecting the rights of copyright owners in
the new Internet environment, including on-demand requests for
downloads:
Despite the radical novelty of the Internet, the analysis reflected in this
paper has proceeded on the basis that the Copyright Act has already
developed into a flexible instrument that is capable of responding to
many of the challenges of the digitally networked environment.
It is important to note that the formulation of the “making available” right
in the particular terms used by the treaties does not mean that it must be
characterized in the same terms in any national legislation.
In their 1998 reports, the expert consultants expressed the opinion that
the Copyright Act’s communication right, with its attendant authorization
right, is sufficiently broad to include a making available right for authors
and their successors. […] The departments share the consultant’s view
that the Act provides for an on-demand communication right. (Emphasis
added)
Intellectual Property Policy Directorate, Consultation Paper on Digital
Copyright Issues (Ottawa: Industry Canada, 2001)(“Consultation Paper”),
RA Tab 5 at 5, 18.
69.
This view was not challenged by an industry group that included Bell
Mobility, one of the appellants in the Rogers Appeal (Bell Mobility is a
division of Bell Canada). In their response to the Federal Government’s
Consultation Paper on Digital Copyright Issues, the group made the
following statement:
The existing exclusive right of communication found in the Act for music
authors is sufficiently broad to include a making available right for
26
content that is either streamed on-line or made available for download
such that no amendment to the Copyright Act is needed in order to meet
the obligations of the WCT. (Emphasis added)
Consultation Paper, RA Tab 5 at 6.
c.
Appellants Claim that a Transmission of a Download is Not a
“Communication to the Public”
(i)
Overview (paras 62-66)
70.
The Appellants state that “the only purpose of a video game download is
to create an exact copy on an individual’s computer or game console”
(para 64). Nevertheless, the process still involves a request for a game
that includes musical works and a transmission of those works to the
user’s computer or game console, all apart from any copy that may result
at the end of that transmission, or any understanding of the user as to how
the game and music ultimately reaches its destination (e.g. streaming vs.
downloading). The Board agreed with the evidence of SOCAN’s witnesses
that there is no meaningful difference between these two modes of
transmission:
[69] The objectors further argue that unlike streaming, downloading is not
audible during the communication; the communication is not available to
or accessible by any other person. Downloading does not involve
“tapping into” an ongoing communication of a work to multiple people.
This argument is based on a false assumption. Streamed music is not
audible during the communication; the end user’s computer must first
store and arrange in proper order the packets it received before it can
play them. We agree with Mr. Jurenka, who stated that the only
difference, technically speaking, between the two is the intention of use
by the consumer. Both of them are a transmission, and both of them can
be “to the public”.
Tariff 24 – Board, RA Tab 8 at para 69.
71.
In paragraph 65, the Appellants suggest that a customer purchasing a
videogame from a website is conducting the same activity as one who
buys the same game from a bricks-and-mortar store or has it shipped
through the mail, and that there is no legal or policy reason to treat these
two transactions differently under the Act simply because of the method of
delivery. There is no merit to that suggestion.
27
72.
In the case of a brick-and-mortar store or the mailing of a video game, the
musical works therein are not delivered by telecommunication. They are
physically picked up by the customer or delivered by mail or courier and,
obviously, there is no liability under the Act for that activity. In the case of
games transmitted on the Internet, the musical work is delivered by
telecommunication,
which
attracts
liability
pursuant
to
a
proper
interpretation of section 3(1)(f) of the Act. If the Appellants or their
members wish to avoid that liability, they can do so by using less efficient
business models that involve older and less attractive means to deliver
their video game files to their customers (e.g., by mail delivery or in-store
retail sales).
73.
The Appellants state that SOCAN cannot seek communication royalties
for performances of music that occur when the video game user later
plays a game and hears music. That is correct, but the point is irrelevant
because SOCAN seeks no such royalty. The relevant level of use is the
transmission of the game to the customer, which takes place (or at least
begins) immediately upon the customer’s request, not the time of the
subsequent performances that take place when the game is played. The
amount of time required for the completion of the communication is
irrelevant. As noted by this Court per Binnie J.:
At the end of the transmission, the end user has a musical work in his or her
possession that was not there before. The work has necessarily been
communicated, irrespective of its point of origin. If the communication is by virtue
of the Internet, there has been a “telecommunication”.
Tariff 22 Phase 1 – SCC, AA Tab 29 at para 45.
74.
Accordingly, the subsequent performances of the music, based on its
reproduction in the customer’s computer or game console, are not at
issue. SOCAN also notes the Appellants’ admission that, in the case of an
Internet stream, rather than a download, there will likely be a
communication within the meaning of paragraph 3(1)(f).
28
(ii)
The Structure of the Act (paras 67 to 72)
75.
The Appellants essentially argue that the communication of musical works
excludes the communication of copies of musical works because
rightsholders can control the distribution of copies of their works by
enforcing their reproduction rights. In support of their position, they rely
primarily on the Bishop case (paras 70 to 72) and go so far as to say that
the FCA’s decisions in Tariffs 22.A and 22.G “…virtually eliminates, so far
as the Internet is concerned, the fundamental distinction between the right
to reproduce a work and the right to communicate that work to the public”.
76.
The Appellants’ interpretation and application of Bishop is flawed in a
number of respects. Firstly, the Appellants fail to note that this Court’s
discussion in that case was based on the pre-1988 amendments to
paragraph 3(1)(f), i.e., it was in respect of conventional broadcasting and
public performances, rather than the communication of works by
telecommunication. More importantly, the key principle flowing from
Bishop is that each of the rights forming part of the bundle set out in
section 3 of the Act are separate and distinct rights, which can be divided,
valued, exploited and administered separately in the case of any given
work.
77.
Accordingly, the fact that the Act protects the reproduction of musical
works does not in any way diminish the scope of protection provided
under the performance head in sub-section 3(1) or the communication
head in paragraph 3(1)(f). For that reason, the fact that SOCAN members
may be paid through another collective for the use of their reproduction
rights is irrelevant. The matter at hand concerns their communication right,
which is set out in the Act as a separate and distinct statutory right and
has been recognized by the Board and the courts as such.
Bishop v Stevens, [1990] 2 SCR 467, AA Tab 3.
Compo Co. v Blue Crest Music Inc, [1980] 1 SCR 178, AA Tab 13.
78.
The Appellants’ position also ignores the fact that, in the modern world of
29
music use, virtually all instances that involve the transmission of musical
works also involve their reproduction. Radio stations, television stations,
cable services, websites, etc. all require and make copies of the musical
works they use as part of their ongoing operations. Nonetheless,
Parliament has decided that copyright owners should continue to have the
ability to negotiate compensation for each of the rights in the section 3
bundle that may be engaged by one or more users.
(iii)
The Language of the Act (paras 73 to 91 and 112 to 118)
79.
The Appellants note that the Act uses each of the terms “transmission”
“distribution” and “communicate.” They suggest that the use of these
different terms indicates that the word communicate must mean
something other than a mere transmission or distribution. From this, they
conclude that “communicate” means the delivery of information to a
receiver in circumstances where the information must “be humanly
perceivable as it is received” (paras 76 to 81).
80.
SOCAN disagrees. It is unreasonable to suggest that Parliament would
have dealt with such an important issue on the basis of such speculative
inferences. Moreover, none of the definitions quoted by the Appellants in
their paragraph 81 connotes a requirement that the transmission of
information must be humanly perceivable as it is received for that
transmission to be considered a “communication”.
81.
Paragraph 2.4(1)(c) was one of the 1993 amendments by which
Parliament sought to remedy the results of the CTV cases, i.e., by
ensuring that the originator of a transmission containing musical works is
deemed liable under the paragraph 3(1)(f) communication right even if that
entity does not complete the transmission to the public. If anything, the
terminology in paragraph 2.4(1)(c) confirms the conclusions reached by
the Board and the courts in the present matter, i.e., that the transmission
of musical works by telecommunication is subject to liability under the Act
30
pursuant to paragraph 3(1)(f).
The CTV Cases
82.
The Appellants’ position on the proper interpretation of the word
“communicate” is largely based on the outdated CTV decisions. The
original case (CAPAC) was set in the 60’s and related to early
conventional television broadcasting. There are simply no similarities
between the situation in CAPAC and the present matter, and the Board
and the FCA have correctly dismissed its relevance.
83.
All of the relevant statutory provisions examined by the courts in CAPAC
have been amended since that decision was rendered:
(a)
Paragraph 3(1)(f) is no longer restricted to “radio communication”
(i.e., conventional broadcasting) – it has been broadened to include
all
communications
of
works
to
the
public
that
are
by
telecommunication (the word “telecommunication” having been
added to the Act and defined in the broadest of terms);
(b)
The definition of “performance” is no longer restricted to “radio
communication”;
(c)
The definition of “musical work” is no longer limited to works that
are “printed, reduced to writing, or otherwise graphically produced
or reproduced”; and
(d)
A new section (2.4(1)(c)) was introduced in the Act to confirm that
originating networks are liable for their transmission of works even
if they are ultimately made to the public by an intermediary entity.
84.
These changes make it clear that paragraph 3(1)(f) is no longer limited to
performances in public in the context of radiocommunication (i.e.,
conventional broadcasting) activities, which was the situation in the
31
CAPAC case. The scope and purpose of 3(1)(f) have been extended in a
manner that is technologically neutral and apt to apply to the
communication of works to the public by telecommunication technologies
such as the Internet. Moreover, it is well known that the 1993
amendments, commonly referred to as the “SOCAN Bill”, were introduced
very specifically to remedy the last statutory impediments to the licensing
of the CTV network by SOCAN.
85.
As recognized by Sharlow J.A. in reviewing the Tariff 24 decision of the
Board, the CTV decisions are simply no longer relevant for the purpose of
interpreting the current legislation, particularly in the modern context of the
Internet:
[23] At that time, the term “musical work” was defined as “any
combination of melody and harmony, or either of them, printed, reduced
to writing, or otherwise graphically produced or reproduced”. Justice
Pigeon, writing for the Supreme Court of Canada, concluded that
paragraph 3(1)(f), as it then read, did not apply.
[24] In reaching that conclusion, Justice Pigeon did not say that there
had been no communication. Rather, he found that what had been
communicated was not a “musical work” (a graphic representation of the
melody and harmony), but a “performance” of the work, which was not
an act within the scope of paragraph 3(1)(f). At that time, the word
“performance” was defined as “any acoustic representation of a work or
any visual representation of any dramatic action in a work, including a
representation made by means of any mechanical instrument or by radio
communication.”
[25] Justice Pigeon did not stop at his literal interpretation of paragraph
3(1)(f), but went on to consider its legislative and historical context. He
found nothing in that context to derogate from the literal interpretation.
Paragraph 3(1)(f), as originally enacted in 1931, was intended to give
effect to section 1 of Article 11bis of the Berne Convention (Rome
Copyright Convention, 1928), which read as follows:
(1) Authors of literary and artistic works shall enjoy the exclusive right of
authorizing the communication of their works to the public by
radiocommunication.
[26] Justice Pigeon concluded that this provision of the Berne
Convention contemplates public performances by radio broadcasting.
That is consistent with the general definition of "copyright" in section 3 of
the Copyright Act, which includes all rights of reproduction, and also
includes all rights to perform the work, but only if the performance is “in
public”. The microwave transmissions facilitated broadcasts to the public
32
by the CTV affiliate stations, as authorized by CAPAC, but they were not
themselves communications to the public.
[27] In 1988, …the definition of “telecommunication” (quoted above) was
added to the Copyright Act, and other provisions were added to deal with
broadcasting issues that are not relevant to this application. At the same
time paragraph 3(1)(f) was amended to become the version that is
applicable to this case. […]
[28] The 1988 version of paragraph 3(1)(f) was considered by this Court
in two cases heard at the same time in 1993. [CTV Television Network
Ltd. v. Canada (Copyright Board) and Canadian Cable Television Assn.
v. Canada (Copyright Board)]
[…]
[30] In my view, the 1968 CAPAC case and the two subsequent cases
from this Court in 1993 cast no doubt on the conclusion that the
transmissions in issue in this case are communications.
Tariff 24 – FCA, AA Tab 7 at para 23-30.
86.
In the CCTA case referred to by Sharlow J.A., cable operators were
transmitting programming, including musical works, directly to their
customer members of the public. Because of the difficulties associated
with the old definition of musical works (they had to be “printed, reduced to
writing, or otherwise graphically produced or reproduced”), the Court in
CCTA found that there was no communication of musical works to the
public pursuant to paragraph 3(1)(f). However, Parliament acted quickly in
response to that decision by amending the definition of musical works in
1993 to make it as broad as possible for the purpose of overcoming that
result.
87.
SOCAN submits that, in the light of the 1988 amendments to the Act,
combined with the new 1993 definition of “musical work”, the CTV cases
would both be decided differently if considered today. A communication of
musical works to the public by telecommunication would be confirmed
upon the facts then before the court.9
9
In fact, shortly after the 1993 amendments to the definition of “musical work”, SOCAN filed a
new tariff targeting the CTV network and the Board approved a SOCAN tariff setting out the
33
88.
In any event, in CCTA, the Court had no difficulty in concluding that the
activities of the cable operators in that case constituted performances in
public under section 3(1) of the Act. As noted by the court, the
amendments to paragraph 3(1)(f) were introduced to avoid endless
litigation and to ensure that performance would extend to new
technological means. That is precisely what the Appellants are challenging
in this case.
Canadian Cable Television Association v Canada (Copyright Board) (1993),
46 CPR (3d) 359 (“CCTA”), AA Tab 6 at 138.
89.
Accordingly, SOCAN submits that the proper interpretation of the Act, as
amended, requires a finding that the Internet transmission of musical
works, in any form, constitutes communication of musical works within the
meaning of section 3(1)(f). However, should this Court not share that view,
SOCAN maintains that the CCTA case supports the alternative proposition
that such transmissions constitute performances of musical works in
public.
(iv)
International Precedents (paras 92 to 100)
90.
The Appellants claim that international precedents support their
interpretation that the download of a video game does not constitute
“communication” within the meaning of paragraph 3(1)(f). Yet their position
is based on a single case, the U.S. ASCAP case, which is under appeal to
the Supreme Court of the United States.
91.
While acknowledging that the legislation in the United States “contains
certain differences from the Canadian Act”, the Appellants claim that those
differences “are not meaningful insofar as the interpretation of s. 3(1)(f) is
concerned”. That is not at all the case.
applicable royalties to be paid by CTV as of the coming into force of those amendments, the
amounts of which had been agreed by the parties: Board Decision of December 20, 1996,
concerning SOCAN - Tariff 2.E (CTV Television Network Ltd.) for the period September 1, 1993
to December 31, 1998
34
92.
In fact, the American legislation differs very significantly from its Canadian
counterpart. In particular, the U.S. Copyright Act definition of “perform”
(reproduced at para 94 of the Appellants’ memorandum) expressly limits
the U.S. communication right to instances where there is a transmission or
communication of a performance of the work. Neither paragraph 3(1)(f)
nor the other relevant sections in the Canadian legislation contain this
important caveat, as was recognized by the Board in its consideration of
the U.S. situation in Tariff 22.A:
FN 24 An American court recently ruled that the transmission of a
musical file does not involve a “performance”: United States v. American
Society of Composers, Authors and Publishers, et al., No. 41-1395,
(S.D.N.Y. April 25, 2007). That decision is not persuasive in Canada.
The American Copyright Act centres on the notion of “performance”
which is significantly different from the Canadian notion of
communication. The American definition of performance expressly
provides that a remote performance can occur only if there is an audible
rendition at the time of delivery. The Canadian definition of
communication contains no such express requirement.
Tariff No. 22.A – Board, AR Tab 2 footnote 24.
93.
If the Appellants were correct in their claim that paragraph 3(1)(f) merely
creates an exclusive right of public performance delivered by means of
telecommunication (para 33), Parliament could have simply followed the
American approach by drafting paragraph 3(1)(f) in the following terms:
“…to communicate a performance of the work to the public by
telecommunication”. Parliament did not restrict the paragraph in this or
any other manner, choosing instead to significantly broaden the scope of
the paragraph and its related provisions.
(v)
Other Related Provisions and Unintended Consequences (paras 101
to 122)
94.
The Appellants argue that an interpretation of “communication to the
public by telecommunication” that includes transmissions resulting in
copies made for later use would have significant consequences on other
portions of the Act that Parliament could not have intended. They argue,
by reference to the terms “publication” and “published”, that the Board’s
35
interpretation of section 3(1)(f) would have the unexpected result of
expanding the exclusion from “publication” to also exclude works
distributed in electronic form. SOCAN submits that this argument has no
merit.
95.
The posting of a previously unpublished work on an Internet website
where members of the public can access it involves a reproduction and
constitutes “making copies of the work available to the public” within the
terms of section 2.2(1). Moreover, when a work is downloaded from a
website, a further copy of the work is reproduced on the end user’s
computer. A parallel is that of a facsimile which results in both a
reproduction of the work at the recipient end, as well as a communication
of the work, as was the case in CCH where a fax was considered by both
the
FCA
and
the
SCC
to
constitute
a
communication
by
telecommunication.10 Accordingly, the exclusion in section 2.2(1)(c) does
not produce any unintended consequences - in fact, it does not come into
play at all.
Ricketson, AA Tab 46 at paras 12.57-12.58.
96.
Secondly, the Appellants argue that the Board’s interpretation jeopardizes
copyright protection for works first “published” in a treaty country. The
Appellants correctly state that Canada is required to protect works created
by non-treaty authors if first published (or simultaneously published) in a
treaty country, and works are “published” when copies of the work are
made available to the public in reasonable quantities in a treaty country.
97.
However, contrary to the Appellants’ argument, if the website is located in
a treaty country, the condition is satisfied by the posting (reproducing) the
work on the website in that country. Where the website is located in a nontreaty country and the transmission is to a recipient in a treaty country, the
10
But not (as held by the SCC) “to the public” because it was there faxed to a single individual.
This issue is addressed in SOCAN’s reply on the Rogers Appeal.
36
transmission again results in a copy of the work on the recipient’s
computer as a utilization of the right of reproduction, which is not excluded
under section 2.2(1)(c).
98.
Similarly, the Appellants argue that the Board’s broad interpretation gives
rise to a different date for publication depending on how the distribution
occurs, whether by distribution in CD format or by distribution over the
Internet. They suggest that in the latter case the work would be deemed
by section 2.2(1)(c) not to be published. However, that again ignores the
fact that reproduction on the website satisfies publication requirements for
Internet transmissions.
99.
Finally, the Appellants make the surprising suggestion that Parliament
could not have intended for music users to be required to clear, from more
than one source, the various rights they need to conduct their business
activities (paras 119 to 122). As discussed above in the context of the
Bishop case, this simply ignores the well established principle that
copyright owners are free to administer their individual copyrights
separately if they so wish. The so-called “multiplicity of tariffs” does
nothing more than reflect the reality of section 3 of the Act and nothing
prevents interested parties from reaching mutually acceptable agreements
on any subject-matter. In fact, SOCAN has entered into many agreements
with users of its repertoire over the years and continues to do so on a
regular basis. Recently, SOCAN negotiated an agreement with the major
players of the Canadian ringtone industry on the royalties to be paid to
SOCAN for the downloading of ringtones to their customers.
(vi)
The FCA and Board Interpretations of the Tariff 22 Decision, CCH
and s. 3(1)(f) (paras 62 to 64)
100.
Contrary to what is suggested by the Appellants, the comments made and
the conclusions reached by the Board, the FCA and this Court in their
examination of SOCAN’s Internet tariffs were based on a thorough
examination of all of the various types of Internet music uses that existed
37
at that time, including both streaming and downloading activities.
101.
It is in vain that the Appellants attempt to cast doubt on the correctness of
the Board and FCA decisions, and a number of their contentions are
simply disingenuous, including their arguments that:
(a)
By asking the question “When does a communication to the public
occur on the Internet?”, the Board was focussing on temporal
issues rather than addressing “what a communication to the public
entails”. The Board addressed the full context of the issue in its
lengthy reasons and its analysis clearly addressed the factual and
legal circumstances in which an Internet communication occurs in
the context of paragraph (1)(f).
(b)
The fact that, in the Tariff 24 matter, the FCA did not expressly
address in detail each and every point raised by the appellants in
that judicial review (virtually the same points raised by the
Appellants in this appeal) does not mean that the FCA did not
consider those arguments. (para 141).
(c)
Similarly, the fact that, in the Tariff 22.G review, the FCA did not
expressly address the Board’s reasons or the Appellants
arguments on the communication issue does not mean that the
FCA did not consider those arguments (para 138). The FCA clearly
referred to the Board’s decision, which in turn expressly set out its
analysis on the communication issue, as did the Appellants in their
factum. Obviously the FCA considered the positions advanced by
the Appellants before the Board and in their court materials and
simply chose to reject them.
(d)
The Board and the FCA did not state that they were bound by the
comments of Binnie J. in Tariff 22 Phase 1 – SCC. They said that
they agreed with his comments and considered them supportive of
38
their own conclusions on the issue.
d.
Policy Considerations (paras 143 to 148)
102.
Contrary to what is suggested by the Appellants, this case is not about
permitting SOCAN to charge royalties for the physical delivery goods.
SOCAN does not administer the making of copies of musical works and is
not seeking compensation for that use. Its interest lies only in the use of
musical works when they are communicated to the public, either as full
length musical tracks or previews or as part of audio-visual material such
as video games or film and television programs.
103.
This case is about recognizing and maintaining basic principles of
Interpretation and copyright law that have been repeatedly confirmed over
the years, including the principle that:
(a)
ordinary words in the Act are to be interpreted as understood in
ordinary speech and should not be given a sense that is at odds
with their most familiar meaning (particularly when this would
further erode copyright holders' right to be compensated for the use
of their works by others); and
(b)
the various rights set out in section 3 are separate and distinct
rights that copyright owners can exercise independently from one
another.
104.
The paragraph 3(1)(f) communication right is not a superfluous
appendage to the sub-section 3(1) rights of performance in public and
reproduction. It is a much broader right than the public performance right,
and is a self-standing right that SOCAN is legally entitled to enforce when
engaged by users.
105.
Video game merchants will continue to be liable only for those rights that
they engage in the course of their business activities. Their situation will
be no different from that of other copyright users, such as radio stations.
39
When a radio station chooses to broadcast musical works by playing CDs
in its studios, only the communication right is engaged. But a station that
chooses to reproduce musical works into its programming software will
have to clear communication rights and reproduction rights for that
additional protected uses. These are not policy issues. They are legal
issues that flow from the application of the Act as enacted by Parliament.
Statement of Royalties to be Collected by SOCAN, RE:SOUND, CSI,
AVLA/SOPROQ and ARTISTI in Respect of Commercial Radio Stations,
Decision of the Board, July 9, 2010.
106.
SOCAN submits that the position advanced by the Appellants in this case
is a “forced interpretation” of the same type rejected by McLachlin J. as
she then was) in the Bishop case:
The issue of ephemeral recording rights (…) is one that has long been
on the legislative agenda, as is evident from the above White Paper
excerpt. See also [Various government reports on copyright reform].
Given the policy issues raised and the repeated consideration of the
matter by Parliament and its legislative adjuncts, it is my view that it
would be inappropriate for this Court to interfere.
In sum, I am not convinced that there is any reason to depart from the
literal readings of s. 3(1)(d) and the introductory paragraph to s. 3(1) of
the Act, which on their face draw a distinction between the right to make
a recording and the right to perform. Neither the wording of the Act, nor
the object and purpose of the Act, nor practical necessity support an
interpretation of these sections which would place ephemeral recordings
within the introductory paragraph to s. 3(1) rather than s. 3(1)(d). On the
contrary, policy considerations suggest that if such a change is to be
made to the Act it should be made by the legislature, and not by a forced
interpretation. I conclude that the right to broadcast a performance under
s. 3(1) of the Act does not include the right to make ephemeral
recordings for the purpose of facilitating the broadcast. (emphasis
added)
Bishop v Stevens, [1990] 2 SCR 467, AA Tab 3 at 484-485.
107.
As was the case in Bishop, this Court should not read into the Act the
significant restrictions to SOCAN’s rights that are urged by the Appellants,
particularly when Internet-related issues continue to be at the forefront of
Parliament’s ongoing copyright reform process. If Parliament intends to
limit the paragraph 3(1)(f) communication right in the restrictive manner
urged by the Appellants, Parliament should be permitted to voice that
40
intention in express terms as part of its legislative agenda. It did not do so.
Government of Canada, “History of Copyright in Canada,” RA Tab 4.
C.
Conclusion
108.
SOCAN maintains that the decisions of the Copyright Board and the FCA
correctly interpret and apply paragraph 3(1)(f) to include the Internet
transmission of musical works, whether as full length downloads and
previews (Tariff 22.A), or as part of video games (Tariff 22.G).
109.
More specifically, a musical work is communicated by telecommunication
when a server containing the work responds to a request and packets are
transmitted over the Internet for the purpose of allowing the recipient to
hear, see or copy the work or a copy of the work, irrespective of whether
the musical works are in humanly perceivable form at the time of
transmission for immediate listening. The Board concluded that these and
other principles would govern all of the various uses of music on the
Internet, irrespective of any particular transmission format or technology
that might be employed for that purpose, including SOCAN Tariffs 22.A
and 22.G.
110.
The Court should not read into the Act such important restrictions to
SOCAN’s rights as those advocated by the Appellants. That would, in the
words of this Court, “tilt the balance unfairly against the copyright owners”.
PART IV – SUBMISSIONS ON COSTS
111.
SOCAN requests its costs on this appeal.
PART V – ORDER REQUESTED
112.
SOCAN requests that the appeal be dismissed.
RESPECTFULLY SUBMITTED THIS 8TH DAY OF SEPTEMBER 2012.
_______________________________
Of counsel for the Respondent SOCAN
41
PART VI – TABLE OF AUTHORITIES
AUTHORITY
PARAGRAPH
LEGISLATION
Copyright Act, RSC 1985, c C-42.
30, 31
JURISPRUDENCE
Bishop v Stevens, [1990] 2 SCR 467.
77, 106
Canada (Attorney General) v Professional Institute of Public
Service of Canada, 2010 FC 728.
28
Canadian Cable Television Association v Canada (Copyright
Board) (1993), 36 CPR (3d) 359.
88
Canadian Wireless Telecommunications Association v Society of
Composers, Authors and Music Publishers of Canada, 2008 FCA
6, (2008) CPR (4th) FCA.
6, 42, 85
Celegne Corp v Canada (Attorney General), 2011 SCC 1, [2011] 1
SCR 3.
32
Compo Co v Blue Crest Music Inc, [1980] 1 SCR 178.
77
Dunsmuir v New Brunswick, 2008 SCC 9, [2008[ 1 SCR 190.
28
Nolan v Kerry (Canada) Inc, 2009 SCC 39, [2009] 2 SCR 678.
28
SOCAN - Tariff 22 [Phase I: Legal Issues], Copyright Board
Decision dated October 27, 1999.
22, 34
SOCAN Tariff No. 22.A – Internet – Online Music Services (19962006), Copyright Board Decision dated October 18, 2007.
22, 26, 45,
92
Tariff Nos. 22.B to 22.G (Internet – Other Uses of Music),
Copyright Board Decision dated October 24, 2008.
46
Tariff No. 24 – Ringtones (2003-2005), Copyright Board Decision
dated August 18, 2006.
40, 41, 70
Society of Composers, Authors and Music Publishers of Canada v
Canadian Assn of Internet Providers, 2002 FCA 166, [2002] 4 FC
3.
36, 51
Society of Composers, Authors and Music Publishers of Canada v
Canadian Assn of Internet Providers, 2004 SCC 45, [2004] 2 SCR
427.
37, 50, 73
Toronto Board of Education v Ontario Federation, District 15
[1997] 1 SCR 487.
28
SECONDARY MATERIALS
Gendreau, Ysolde. “The Reproduction Right and Internet” (1998)
178 RIDA 3.
66
Government of Canada. “History of Copyright in Canada”, online:
107
42
<http://www.pch.gc.ca>.
Intellectual Property Policy Directorate. Consultation Paper on
Digital Copyright Issues (Ottawa: Industry Canada, 2001).
68, 69
Ricketson, S & J. Ginsburg. International Copyright and
Neighbouring Rights - The Berne Convention and Beyond, 2d ed,
Vol 1 (Oxford: Oxford University Press, 2006).
62, 67, 95
OTHER MATERIALS
Berne Convention for the Protection of Literary and Artistic Works, 62
9 September 1886.
Statement of Royalties to be Collected by SOCAN, RE:SOUND, 105
CSI, AVLA/SOPROQ and ARTISTI in Respect of Commercial
Radio Stations, Decision of the Board, July 9, 2010.
WIPO Copyright Treaty, 20 December 1996, WCT.
65
43
PART VII – STATUTORY AUTHORITIES
1.
Copyright Act, RSC 1985, c-42.
CANADA
CONSOLIDATION
CODIFICATION
Copyright Act
Loi sur le droit d’auteur
CHAPTER C-42
CHAPITRE C-42
Current to July 11, 2010
À jour au 11 juillet 2010
Published by the Minister of Justice at the following address:
http://laws-lois.justice.gc.ca
Publié par le ministre de la Justice à l’adresse suivante :
http://laws-lois.justice.gc.ca
CHAPTER C-42
CHAPITRE C-42
An Act respecting copyright
Loi concernant le droit d’auteur
SHORT TITLE
Short title
TITRE ABRÉGÉ
1. This Act may be cited as the Copyright
Act.
1. Loi sur le droit d’auteur.
Titre abrégé
S.R., ch. C-30, art. 1.
R.S., c. C-30, s. 1.
INTERPRETATION
Definitions
“architectural
work”
« œuvre
architecturale »
DÉFINITIONS ET DISPOSITIONS
INTERPRÉTATIVES
2. In this Act,
“architectural work” means any building or
structure or any model of a building or structure;
“architectural work of art” [Repealed, 1993, c.
44, s. 53]
“artistic work”
« œuvre
artistique »
2. Les définitions qui suivent s’appliquent à
la présente loi.
Définitions
« accessible sur le marché » S’entend, en ce qui
concerne une œuvre ou de tout autre objet du
droit d’auteur
« accessible sur
le marché »
“commercially
available”
a) qu’il est possible de se procurer, au
Canada, à un prix et dans un délai raisonnables, et de trouver moyennant des efforts
raisonnables;
“artistic work” includes paintings, drawings,
maps, charts, plans, photographs, engravings,
sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic
works;
“Berne
Convention
country”
« pays partie à
la Convention de
Berne »
“Berne Convention country” means a country
that is a party to the Convention for the Protection of Literary and Artistic Works concluded
at Berne on September 9, 1886, or any one of
its revisions, including the Paris Act of 1971;
b) pour lequel il est possible d’obtenir, à un
prix et dans un délai raisonnables et moyennant des efforts raisonnables, une licence octroyée par une société de gestion pour la reproduction, l’exécution en public ou la
communication au public par télécommunication, selon le cas.
“Board”
« Commission »
“Board” means the Copyright Board established by subsection 66(1);
« appareil récepteur » [Abrogée, 1993, ch. 44,
art. 79]
“book”
« livre »
“book” means a volume or a part or division of
a volume, in printed form, but does not include
« artiste interprète » [Abrogée, 1997, ch. 24, art.
1]
(a) a pamphlet,
(b) a newspaper, review, magazine or other
periodical,
(c) a map, chart, plan or sheet music where
the map, chart, plan or sheet music is separately published, and
« artiste-interprète » Tout artiste-interprète ou
exécutant.
« artisteinterprète »
French version
only
« bibliothèque, musée ou service d’archives »
S’entend :
« bibliothèque,
musée ou
service
d’archives »
“library, archive
or museum”
a) d’un établissement doté ou non de la personnalité morale qui :
(i) d’une part, n’est pas constitué ou administré pour réaliser des profits, ni ne fait
1
Copyright — July 11, 2010
(d) an instruction or repair manual that accompanies a product or that is supplied as an
accessory to a service;
“broadcaster”
« radiodiffuseur »
partie d’un organisme constitué ou administré pour réaliser des profits, ni n’est administré ou contrôlé directement ou indirectement par un tel organisme,
“broadcaster” means a body that, in the course
of operating a broadcasting undertaking, broadcasts a communication signal in accordance
with the law of the country in which the broadcasting undertaking is carried on, but excludes
a body whose primary activity in relation to
communication signals is their retransmission;
“choreographic
work”
« œuvre
chorégraphique
»
“choreographic work” includes any work of
choreography, whether or not it has any story
line;
“cinematographic work”
« œuvre
cinématographique »
“cinematographic work” includes any work expressed by any process analogous to cinematography, whether or not accompanied by a
soundtrack;
“collective
society”
« société de
gestion »
“collective society” means a society, association or corporation that carries on the business
of collective administration of copyright or of
the remuneration right conferred by section 19
or 81 for the benefit of those who, by assignment, grant of licence, appointment of it as
their agent or otherwise, authorize it to act on
their behalf in relation to that collective administration, and
(ii) d’autre part, rassemble et gère des collections de documents ou d’objets qui sont
accessibles au public ou aux chercheurs;
b) de tout autre établissement à but non lucratif visé par règlement.
“cinematograph” [Repealed, 1997, c. 24, s. 1]
« Commission »
“Board”
« compilation » Les œuvres résultant du choix
ou de l’arrangement de tout ou partie d’œuvres
littéraires, dramatiques, musicales ou artistiques ou de données.
« compilation »
“compilation”
« conférence » Sont assimilés à une conférence
les allocutions, discours et sermons.
« conférence »
“lecture”
« contrefaçon »
« contrefaçon »
“infringing”
a) À l’égard d’une œuvre sur laquelle existe
un droit d’auteur, toute reproduction, y compris l’imitation déguisée, qui a été faite
contrairement à la présente loi ou qui a fait
l’objet d’un acte contraire à la présente loi;
b) à l’égard d’une prestation sur laquelle
existe un droit d’auteur, toute fixation ou reproduction de celle-ci qui a été faite contrairement à la présente loi ou qui a fait l’objet
d’un acte contraire à la présente loi;
(a) operates a licensing scheme, applicable
in relation to a repertoire of works, performer’s performances, sound recordings or
communication signals of more than one author, performer, sound recording maker or
broadcaster, pursuant to which the society,
association or corporation sets out classes of
uses that it agrees to authorize under this
Act, and the royalties and terms and conditions on which it agrees to authorize those
classes of uses, or
c) à l’égard d’un enregistrement sonore sur
lequel existe un droit d’auteur, toute reproduction de celle-ci qui a été faite contrairement à la présente loi ou qui a fait l’objet
d’un acte contraire à la présente loi;
d) à l’égard d’un signal de communication
sur lequel existe un droit d’auteur, toute fixation ou reproduction de la fixation qui a été
faite contrairement à la présente loi ou qui a
fait l’objet d’un acte contraire à la présente
loi.
(b) carries on the business of collecting and
distributing royalties or levies payable pursuant to this Act;
“collective
work”
« recueil »
« Commission » La Commission du droit d’auteur constituée au titre du paragraphe 66(1).
La présente définition exclut la reproduction —
autre que celle visée par l’alinéa 27(2)e) et l’article 27.1 — faite avec le consentement du titulaire du droit d’auteur dans le pays de production.
“collective work” means
(a) an encyclopaedia, dictionary, year book
or similar work,
(b) a newspaper, review, magazine or similar periodical, and
« débit » [Abrogée, 1997, ch. 24, art. 1]
2
Droit d’auteur — 11 juillet 2010
(c) any work written in distinct parts by different authors, or in which works or parts of
works of different authors are incorporated;
“commercially
available”
« accessible sur
le marché »
“commercially available” means, in relation to
a work or other subject-matter,
« déficience perceptuelle » Déficience qui empêche la lecture ou l’écoute d’une œuvre littéraire, dramatique, musicale ou artistique sur le
support original ou la rend difficile, en raison
notamment :
(a) available on the Canadian market within
a reasonable time and for a reasonable price
and may be located with reasonable effort, or
a) de la privation en tout ou en grande partie
du sens de l’ouïe ou de la vue ou de l’incapacité d’orienter le regard;
(b) for which a licence to reproduce, perform in public or communicate to the public
by telecommunication is available from a
collective society within a reasonable time
and for a reasonable price and may be located with reasonable effort;
b) de l’incapacité de tenir ou de manipuler
un livre;
“communication
signal”
« signal de
communication »
“communication signal” means radio waves
transmitted through space without any artificial
guide, for reception by the public;
“compilation”
« compilation »
“compilation” means
c) d’une insuffisance relative à la compréhension.
« distributeur exclusif » S’entend, en ce qui
concerne un livre, de toute personne qui remplit
les conditions suivantes :
(b) a work resulting from the selection or arrangement of data;
b) elle répond aux critères fixés par règlement pris en vertu de l’article 2.6.
“computer
program”
« programme
d’ordinateur »
“computer program” means a set of instructions
or statements, expressed, fixed, embodied or
stored in any manner, that is to be used directly
or indirectly in a computer in order to bring
about a specific result;
Il est entendu qu’une personne ne peut être distributeur exclusif au sens de la présente définition si aucun règlement n’est pris en vertu de
l’article 2.6.
“copyright”
« droit
d’auteur »
“copyright” means the rights described in
« droit d’auteur » S’entend du droit visé :
(a) section 3, in the case of a work,
a) dans le cas d’une œuvre, à l’article 3;
(b) sections 15 and 26, in the case of a performer’s performance,
b) dans le cas d’une prestation, aux articles
15 et 26;
(c) section 18, in the case of a sound recording, or
c) dans le cas d’un enregistrement sonore, à
l’article 18;
(d) section 21, in the case of a communication signal;
d) dans le cas d’un signal de communication, à l’article 21.
“country” includes any territory;
“defendant”
Version anglaise
seulement
“defendant” includes a respondent to an application;
“delivery” [Repealed, 1997, c. 24, s. 1]
“dramatic work”
« œuvre
dramatique »
« distributeur
exclusif »
“exclusive
distributor”
a) le titulaire du droit d’auteur sur le livre au
Canada ou le titulaire d’une licence exclusive au Canada s’y rapportant lui a accordé,
avant ou après l’entrée en vigueur de la présente définition, par écrit, la qualité d’unique
distributeur pour tout ou partie du Canada ou
d’unique distributeur pour un secteur du
marché pour tout ou partie du Canada;
(a) a work resulting from the selection or arrangement of literary, dramatic, musical or
artistic works or of parts thereof, or
“country”
« pays »
« déficience
perceptuelle »
“perceptual
disability”
“dramatic work” includes
(a) any piece for recitation, choreographic
work or mime, the scenic arrangement or
3
« droit
d’auteur »
“copyright”
« droits moraux » Les droits visés au paragraphe
14.1(1).
« droits
moraux »
“moral rights”
« enregistrement
sonore »
Enregistrement
constitué de sons provenant ou non de l’exécution d’une œuvre et fixés sur un support matériel quelconque; est exclue de la présente définition la bande sonore d’une œuvre
cinématographique lorsqu’elle accompagne
celle-ci.
« enregistrement
sonore »
“sound
recording”
Copyright — July 11, 2010
acting form of which is fixed in writing or
otherwise,
« établissement d’enseignement » :
a) Établissement sans but lucratif agréé aux
termes des lois fédérales ou provinciales
pour dispenser de l’enseignement aux niveaux préscolaire, élémentaire, secondaire
ou postsecondaire, ou reconnu comme tel;
(b) any cinematographic work, and
(c) any compilation of dramatic works;
“educational
institution”
« établissement
d’enseignement »
“educational institution” means
(a) a non-profit institution licensed or recognized by or under an Act of Parliament or the
legislature of a province to provide preschool, elementary, secondary or post-secondary education,
b) établissement sans but lucratif placé sous
l’autorité d’un conseil scolaire régi par une
loi provinciale et qui dispense des cours
d’éducation ou de formation permanente,
technique ou professionnelle;
(b) a non-profit institution that is directed or
controlled by a board of education regulated
by or under an Act of the legislature of a
province and that provides continuing, professional or vocational education or training,
c) ministère ou organisme, quel que soit
l’ordre de gouvernement, ou entité sans but
lucratif qui exerce une autorité sur l’enseignement et la formation visés aux alinéas a)
et b);
(c) a department or agency of any order of
government, or any non-profit body, that
controls or supervises education or training
referred to in paragraph (a) or (b), or
d) tout autre établissement sans but lucratif
visé par règlement.
« établissement
d’enseignement »
“educational
institution”
« gravure »
“engravings”
(d) any other non-profit institution prescribed by regulation;
« gravure » Sont assimilées à une gravure les
gravures à l’eau-forte, les lithographies, les gravures sur bois, les estampes et autres œuvres similaires, à l’exclusion des photographies.
“engravings”
« gravure »
“engravings” includes etchings, lithographs,
woodcuts, prints and other similar works, not
being photographs;
« livre » Tout volume ou toute partie ou division d’un volume présentés sous forme imprimée, à l’exclusion :
« livre »
“book”
“every original
literary,
dramatic,
musical and
artistic work”
« toute œuvre
littéraire,
dramatique,
musicale ou
artistique
originale »
“every original literary, dramatic, musical and
artistic work” includes every original production in the literary, scientific or artistic domain,
whatever may be the mode or form of its expression, such as compilations, books, pamphlets and other writings, lectures, dramatic or
dramatico-musical works, musical works,
translations, illustrations, sketches and plastic
works relative to geography, topography, architecture or science;
“exclusive
distributor”
« distributeur
exclusif »
“exclusive distributor” means, in relation to a
book, a person who
a) des brochures;
b) des journaux, revues, magazines et autres
périodiques;
c) des feuilles de musique, cartes, graphiques ou plans, s’ils sont publiés séparément;
d) des manuels d’instruction ou d’entretien
qui accompagnent un produit ou sont fournis
avec des services.
(a) has, before or after the coming into force
of this definition, been appointed in writing,
by the owner or exclusive licensee of the
copyright in the book in Canada, as
(i) the only distributor of the book in
Canada or any part of Canada, or
(ii) the only distributor of the book in
Canada or any part of Canada in respect of
a particular sector of the market, and
(b) meets the criteria established by regulations made under section 2.6,
4
« locaux » S’il s’agit d’un établissement d’enseignement, lieux où celui-ci dispense l’enseignement ou la formation visés à la définition de
ce terme ou exerce son autorité sur eux.
« locaux »
“premises”
« membre de l’OMC » Membre de l’Organisation mondiale du commerce au sens du paragraphe 2(1) de la Loi de mise en œuvre de l’Accord sur l’Organisation mondiale du
commerce.
« membre de
l’OMC »
“WTO Member”
« ministre » Sauf à l’article 44.1, le ministre de
l’Industrie.
« ministre »
“Minister”
Droit d’auteur — 11 juillet 2010
and, for greater certainty, if there are no regulations made under section 2.6, then no person
qualifies under this definition as an “exclusive
distributor”;
« œuvre » Est assimilé à une œuvre le titre de
l’œuvre lorsque celui-ci est original et distinctif.
« œuvre »
“work”
« œuvre architecturale » Tout bâtiment ou édifice ou tout modèle ou maquette de bâtiment ou
d’édifice.
« œuvre
architecturale »
“architectural
work”
« œuvre artistique » Sont compris parmi les
œuvres artistiques les peintures, dessins, sculptures, œuvres architecturales, gravures ou photographies, les œuvres artistiques dues à des artisans ainsi que les graphiques, cartes, plans et
compilations d’œuvres artistiques.
« œuvre
artistique »
“artistic work”
« œuvre chorégraphique » S’entend de toute
chorégraphie, que l’œuvre ait ou non un sujet.
« œuvre
chorégraphique
»
“choreographic
work”
(c) in relation to a sound recording in respect of which copyright subsists, any copy
of it made or dealt with in contravention of
this Act, or
« œuvre cinématographique » Y est assimilée
toute œuvre exprimée par un procédé analogue
à la cinématographie, qu’elle soit accompagnée
ou non d’une bande sonore.
« œuvre
cinématographique »
“cinematographic work”
(d) in relation to a communication signal in
respect of which copyright subsists, any fixation or copy of a fixation of it made or dealt
with in contravention of this Act.
« œuvre créée en collaboration » Œuvre exécutée par la collaboration de deux ou plusieurs
auteurs, et dans laquelle la part créée par l’un
n’est pas distincte de celle créée par l’autre ou
les autres.
« œuvre créée en
collaboration »
“work of joint
authorship”
“Her Majesty’s Realms and Territories” [Repealed, 1997, c. 24, s. 1]
“infringing”
« contrefaçon »
“infringing” means
(a) in relation to a work in which copyright
subsists, any copy, including any colourable
imitation, made or dealt with in contravention of this Act,
(b) in relation to a performer’s performance
in respect of which copyright subsists, any
fixation or copy of a fixation of it made or
dealt with in contravention of this Act,
The definition includes a copy that is imported
in the circumstances set out in paragraph
27(2)(e) and section 27.1 but does not otherwise include a copy made with the consent of
the owner of the copyright in the country where
the copy was made;
“lecture”
« conférence »
“lecture” includes address, speech and sermon;
“legal
representatives”
« représentants
légaux »
“legal representatives” includes heirs, executors, administrators, successors and assigns, or
agents or attorneys who are thereunto duly authorized in writing;
“library, archive
or museum”
« bibliothèque,
musée ou service
d’archives »
“library, archive or museum” means
« œuvre d’art architecturale » [Abrogée, 1993,
ch. 44, art. 53]
« œuvre de sculpture » [Abrogée, 1997, ch. 24,
art. 1]
(a) an institution, whether or not incorporated, that is not established or conducted for
profit or that does not form a part of, or is
not administered or directly or indirectly
controlled by, a body that is established or
conducted for profit, in which is held and
maintained a collection of documents and
other materials that is open to the public or to
researchers, or
(b) any other non-profit institution prescribed by regulation;
5
« œuvre dramatique » Y sont assimilées les
pièces pouvant être récitées, les œuvres chorégraphiques ou les pantomimes dont l’arrangement scénique ou la mise en scène est fixé par
écrit ou autrement, les œuvres cinématographiques et les compilations d’œuvres dramatiques.
« œuvre
dramatique »
“dramatic work”
« œuvre littéraire » Y sont assimilés les tableaux, les programmes d’ordinateur et les
compilations d’œuvres littéraires.
« œuvre
littéraire »
“literary work”
« œuvre musicale » Toute œuvre ou toute composition musicale — avec ou sans paroles — et
toute compilation de celles-ci.
« œuvre
musicale »
“musical work”
« pays » S’entend notamment d’un territoire.
« pays »
“country”
« pays partie à la Convention de Berne » Pays
partie à la Convention pour la protection des
œuvres littéraires et artistiques, conclue à Berne
le 9 septembre 1886, ou à l’une de ses versions
« pays partie à la
Convention de
Berne »
“Berne
Convention
country”
Copyright — July 11, 2010
“literary work”
« œuvre
littéraire »
“literary work” includes tables, computer programs, and compilations of literary works;
révisées, notamment celle de l’Acte de Paris de
1971.
“maker”
« producteur »
“maker” means
« pays partie à la Convention de Rome » Pays
partie à la Convention internationale sur la protection des artistes interprètes ou exécutants,
des producteurs d’enregistrements sonores et
des organismes de radiodiffusion, conclue à
Rome le 26 octobre 1961.
« pays partie à la
Convention de
Rome »
“Rome
Convention
country”
« pays partie à la Convention universelle » Pays
partie à la Convention universelle sur le droit
d’auteur, adoptée à Genève (Suisse) le 6 septembre 1952, ou dans sa version révisée à Paris
(France) le 24 juillet 1971.
« pays partie à la
Convention
universelle »
“UCC country”
« pays
signataire »
“treaty country”
(a) in relation to a cinematographic work,
the person by whom the arrangements necessary for the making of the work are undertaken, or
(b) in relation to a sound recording, the person by whom the arrangements necessary for
the first fixation of the sounds are undertaken;
“Minister”
« ministre »
“Minister”, except in section 44.1, means the
Minister of Industry;
“moral rights”
« droits
moraux »
“moral rights” means the rights described in
subsection 14.1(1);
« pays signataire » Pays partie à la Convention
de Berne ou à la Convention universelle ou
membre de l’OMC.
“musical work”
« œuvre
musicale »
“musical work” means any work of music or
musical composition, with or without words,
and includes any compilation thereof;
« photographie » Y sont assimilées les photolithographies et toute œuvre exprimée par un
procédé analogue à la photographie.
« photographie »
“photograph”
“perceptual
disability”
« déficience
perceptuelle »
“perceptual disability” means a disability that
prevents or inhibits a person from reading or
hearing a literary, musical, dramatic or artistic
work in its original format, and includes such a
disability resulting from
« planche » Sont assimilés à une planche toute
planche stéréotypée ou autre, pierre, matrice,
transposition et épreuve négative, et tout moule
ou cliché, destinés à l’impression ou à la reproduction d’exemplaires d’une œuvre, ainsi que
toute matrice ou autre pièce destinées à la fabrication ou à la reproduction d’enregistrements
sonores, de prestations ou de signaux de communication, selon le cas.
« planche »
“plate”
« prestation » Selon le cas, que l’œuvre soit encore protégée ou non et qu’elle soit déjà fixée
sous une forme matérielle quelconque ou non :
« prestation »
“performer’s
performance”
(a) severe or total impairment of sight or
hearing or the inability to focus or move
one’s eyes,
(b) the inability to hold or manipulate a
book, or
(c) an impairment relating to comprehension;
“performance”
« représentation » ou
« exécution »
“performer’s
performance”
« prestation »
a) l’exécution ou la représentation d’une
œuvre artistique, dramatique ou musicale par
un artiste-interprète;
“performance” means any acoustic or visual
representation of a work, performer’s performance, sound recording or communication signal, including a representation made by means
of any mechanical instrument, radio receiving
set or television receiving set;
b) la récitation ou la lecture d’une œuvre littéraire par celui-ci;
c) une improvisation dramatique, musicale
ou littéraire par celui-ci, inspirée ou non
d’une œuvre préexistante.
“performer’s performance” means any of the
following when done by a performer:
(a) a performance of an artistic work, dramatic work or musical work, whether or not
the work was previously fixed in any material form, and whether or not the work’s term
of copyright protection under this Act has
expired,
6
« producteur » La personne qui effectue les opérations nécessaires à la confection d’une œuvre
cinématographique, ou à la première fixation de
sons dans le cas d’un enregistrement sonore.
« producteur »
“maker”
« programme d’ordinateur » Ensemble d’instructions ou d’énoncés destiné, quelle que soit
la façon dont ils sont exprimés, fixés, incorporés ou emmagasinés, à être utilisé directement
« programme
d’ordinateur »
“computer
program”
Droit d’auteur — 11 juillet 2010
(b) a recitation or reading of a literary work,
whether or not the work’s term of copyright
protection under this Act has expired, or
ou indirectement dans un ordinateur en vue
d’un résultat particulier.
“photograph”
«
photographie »
“photograph” includes photo-lithograph and
any work expressed by any process analogous
to photography;
« radiodiffuseur » Organisme qui, dans le cadre
de l’exploitation d’une entreprise de radiodiffusion, émet un signal de communication en
conformité avec les lois du pays où il exploite
cette entreprise; est exclu de la présente définition l’organisme dont l’activité principale, liée
au signal de communication, est la retransmission de celui-ci.
“plaintiff”
Version anglaise
seulement
“plaintiff” includes an applicant;
« recueil »
“plate”
« planche »
“plate” includes
(c) an improvisation of a dramatic work,
musical work or literary work, whether or
not the improvised work is based on a preexisting work;
a) Les encyclopédies, dictionnaires, annuaires ou œuvres analogues;
c) toute œuvre composée, en parties distinctes, par différents auteurs ou dans laquelle sont incorporées des œuvres ou parties
d’œuvres d’auteurs différents.
« représentants légaux » Sont compris parmi les
représentants légaux les héritiers, exécuteurs
testamentaires, administrateurs, successeurs et
ayants droit, ou les agents ou fondés de pouvoir
régulièrement constitués par mandat écrit.
“premises” means, in relation to an educational
institution, a place where education or training
referred to in the definition “educational institution” is provided, controlled or supervised by
the educational institution;
« représentation »,
« exécution »
« audition » [Abrogée, 1997, ch. 24, art. 1]
“Rome Convention country” means a country
that is a party to the International Convention
for the Protection of Performers, Producers of
Phonograms and Broadcasting Organisations,
done at Rome on October 26, 1961;
“sculpture”
« sculpture »
“sculpture” includes a cast or model;
“sound
recording”
« enregistrement
sonore »
“sound recording” means a recording, fixed in
any material form, consisting of sounds,
whether or not of a performance of a work, but
excludes any soundtrack of a cinematographic
work where it accompanies the cinematographic work;
“telecommunication”
« télécommunication »
“telecommunication” means any transmission
of signs, signals, writing, images or sounds or
intelligence of any nature by wire, radio, visual,
optical or other electromagnetic system;
“treaty country”
« pays
signataire »
“treaty country” means a Berne Convention
country, UCC country or WTO Member;
« représentants
légaux »
“legal
representatives”
ou
« représentation » ou « exécution » Toute exécution sonore ou toute représentation visuelle
d’une œuvre, d’une prestation, d’un enregistrement sonore ou d’un signal de communication,
selon le cas, y compris l’exécution ou la représentation à l’aide d’un instrument mécanique,
d’un appareil récepteur de radio ou d’un appareil récepteur de télévision.
“receiving device” [Repealed, 1993, c. 44, s.
79]
“Rome
Convention
country”
« pays partie à
la Convention de
Rome »
« recueil »
“collective
work”
b) les journaux, revues, magazines ou autres
publications périodiques;
(a) any stereotype or other plate, stone,
block, mould, matrix, transfer or negative
used or intended to be used for printing or reproducing copies of any work, and
(b) any matrix or other appliance used or intended to be used for making or reproducing
sound recordings, performer’s performances
or communication signals;
“premises”
« locaux »
« radiodiffuseur »
“broadcaster”
« représentation » ou
« exécution »
“performance”
« royaumes et territoires de Sa Majesté » [Abrogée, 1997, ch. 24, art. 1]
7
« sculpture » Y sont assimilés les moules et les
modèles.
« sculpture »
“sculpture”
« signal de communication » Ondes radioélectriques diffusées dans l’espace sans guide artificiel, aux fins de réception par le public.
« signal de
communication »
“communication
signal”
« société de gestion » Association, société ou
personne morale autorisée — notamment par
voie de cession, licence ou mandat — à se livrer à la gestion collective du droit d’auteur ou
du droit à rémunération conféré par les articles
« société de
gestion »
“collective
society”
Droit d’auteur — 11 juillet 2010
What constitutes
rental
2.5 (1) For the purposes of paragraphs
3(1)(h) and (i), 15(1)(c) and 18(1)(c), an arrangement, whatever its form, constitutes a
rental of a computer program or sound recording if, and only if,
(a) it is in substance a rental, having regard
to all the circumstances; and
(b) it is entered into with motive of gain in
relation to the overall operations of the person who rents out the computer program or
sound recording, as the case may be.
Motive of gain
(2) For the purpose of paragraph (1)(b), a
person who rents out a computer program or
sound recording with the intention of recovering no more than the costs, including overhead,
associated with the rental operations does not
by that act alone have a motive of gain in relation to the rental operations.
2.5 (1) Pour l’application des alinéas 3(1)h)
et i), 15(1)c) et 18(1)c), équivaut à une location
l’accord — quelle qu’en soit la forme et
compte tenu des circonstances — qui en a la
nature et qui est conclu avec l’intention de faire
un gain dans le cadre des activités générales du
loueur de programme d’ordinateur ou d’enregistrement sonore, selon le cas.
Location
(2) Il n’y a toutefois pas intention de faire
un gain lorsque le loueur n’a que l’intention de
recouvrer les coûts — frais généraux compris
— afférents à la location.
Intention du
loueur
1997, ch. 24, art. 2.
1997, c. 24, s. 2.
Exclusive
distributor
Exclusive
licence
Copyright in
works
2.6 The Governor in Council may make regulations establishing distribution criteria for the
purpose of paragraph (b) of the definition “exclusive distributor” in section 2.
2.6 Le gouverneur en conseil peut, par règlement, fixer les critères de distribution pour
l’application de la définition de « distributeur
exclusif » figurant à l’article 2.
1997, c. 24, s. 2.
1997, ch. 24, art. 2.
2.7 For the purposes of this Act, an exclusive licence is an authorization to do any act
that is subject to copyright to the exclusion of
all others including the copyright owner,
whether the authorization is granted by the
owner or an exclusive licensee claiming under
the owner.
2.7 Pour l’application de la présente loi, une
licence exclusive est l’autorisation accordée au
licencié d’accomplir un acte visé par un droit
d’auteur de façon exclusive, qu’elle soit accordée par le titulaire du droit d’auteur ou par une
personne déjà titulaire d’une licence exclusive;
l’exclusion vise tous les titulaires.
1997, c. 24, s. 2.
1997, ch. 24, art. 2.
PART I
PARTIE I
COPYRIGHT AND MORAL RIGHTS IN
WORKS
DROIT D’AUTEUR ET DROITS MORAUX
SUR LES ŒUVRES
COPYRIGHT
DROIT D’AUTEUR
3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole
right to produce or reproduce the work or any
substantial part thereof in any material form
whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right
3. (1) Le droit d’auteur sur l’œuvre comporte le droit exclusif de produire ou reproduire
la totalité ou une partie importante de l’œuvre,
sous une forme matérielle quelconque, d’en
exécuter ou d’en représenter la totalité ou une
partie importante en public et, si l’œuvre n’est
pas publiée, d’en publier la totalité ou une partie importante; ce droit comporte, en outre, le
droit exclusif :
(a) to produce, reproduce, perform or publish any translation of the work,
a) de produire, reproduire, représenter ou
publier une traduction de l’œuvre;
11
Distributeur
exclusif
Licence
exclusive
Droit d’auteur
sur l’œuvre
Copyright — July 11, 2010
(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic
work,
b) s’il s’agit d’une œuvre dramatique, de la
transformer en un roman ou en une autre
œuvre non dramatique;
(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert
it into a dramatic work, by way of performance in public or otherwise,
c) s’il s’agit d’un roman ou d’une autre
œuvre non dramatique, ou d’une œuvre artistique, de transformer cette œuvre en une
œuvre dramatique, par voie de représentation
publique ou autrement;
(d) in the case of a literary, dramatic or musical work, to make any sound recording,
cinematograph film or other contrivance by
means of which the work may be mechanically reproduced or performed,
d) s’il s’agit d’une œuvre littéraire, dramatique ou musicale, d’en faire un enregistrement sonore, film cinématographique ou
autre support, à l’aide desquels l’œuvre peut
être reproduite, représentée ou exécutée mécaniquement;
(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and
publicly present the work as a cinematographic work,
e) s’il s’agit d’une œuvre littéraire, dramatique, musicale ou artistique, de reproduire,
d’adapter et de présenter publiquement
l’œuvre en tant qu’œuvre cinématographique;
(f) in the case of any literary, dramatic, musical or artistic work, to communicate the
work to the public by telecommunication,
f) de communiquer au public, par télécommunication, une œuvre littéraire, dramatique,
musicale ou artistique;
(g) to present at a public exhibition, for a
purpose other than sale or hire, an artistic
work created after June 7, 1988, other than a
map, chart or plan,
g) de présenter au public lors d’une exposition, à des fins autres que la vente ou la location, une œuvre artistique — autre qu’une
carte géographique ou marine, un plan ou un
graphique — créée après le 7 juin 1988;
(h) in the case of a computer program that
can be reproduced in the ordinary course of
its use, other than by a reproduction during
its execution in conjunction with a machine,
device or computer, to rent out the computer
program, and
h) de louer un programme d’ordinateur qui
peut être reproduit dans le cadre normal de
son utilisation, sauf la reproduction effectuée
pendant son exécution avec un ordinateur ou
autre machine ou appareil;
(i) in the case of a musical work, to rent out
a sound recording in which the work is embodied,
i) s’il s’agit d’une œuvre musicale, d’en
louer tout enregistrement sonore.
and to authorize any such acts.
Est inclus dans la présente définition le droit
exclusif d’autoriser ces actes.
Simultaneous
fixing
(1.1) A work that is communicated in the
manner described in paragraph (1)(f) is fixed
even if it is fixed simultaneously with its communication.
(1.1) Dans le cadre d’une communication
effectuée au titre de l’alinéa (1)f), une œuvre
est fixée même si sa fixation se fait au moment
de sa communication.
(1.2) to (4) [Repealed, 1997, c. 24, s. 3]
R.S., 1985, c. C-42, s. 3; R.S., 1985, c. 10 (4th Supp.), s. 2;
1988, c. 65, s. 62; 1993, c. 23, s. 2, c. 44, s. 55; 1997, c. 24,
s. 3.
(1.2) à (4) [Abrogés, 1997, ch. 24, art. 3]
L.R. (1985), ch. C-42, art. 3; L.R. (1985), ch. 10 (4e suppl.),
art. 2; 1988, ch. 65, art. 62; 1993, ch. 23, art. 2, ch. 44, art.
55; 1997, ch. 24, art. 3.
4. [Repealed, 1997, c. 24, s. 4]
4. [Abrogé, 1997, ch. 24, art. 4]
12
Fixation
ANNEX A
SOCAN v. CAIP, 2002 FCA 166
SOCAN v. CAIP, 2004 SCC 45
Federal Court of Appeal
Supreme Court of Canada
Leave to Appeal Dismissed, 2008
CWTA v. SOCAN, 2008 FCA 6
Board Decision, Ringtones (2006)
Tariff 24 (Ringtones)
SCC Case No. 33800 (Fair Dealing Appeal)
SOCAN v. Bell, 2010 FCA 123
SCC Case No. 33922 (Rogers Appeal)
Bell v. SOCAN, 2010 FCA 220
Board Decision, T.22.A (2007)
Tariff 22 Phase 2
SCC Case No. 33921 (ESA
Appeal)
ESA v. CSI, 2010 FCA 221
Board Decision, T.22.B‐G (2008)
Shaded boxes indicate decisions which directly address the meaning of paragraph 3(1)(f)
Board Decision, T.22 (1999)
Copyright Board
Tariff 22 Phase 1
Hi t
History of Tariff 22 (1996‐2006) f T iff 22 (1996 2006) and Tariff 24 (2003‐2005)
d T iff 24 (2003 2005)