Canadian Supreme Court Issues New Musical Copyright Rulings

On Thursday, July 12, Canada’s Supreme Court issued five rulings regarding existing or proposed tariffs issued by the Copyright Board under the Copyright Act, four of which directly dealt with music copyright law. The decisions concerned music downloading and streaming, film and T.V. soundtracks, and the distribution of video games on the internet. Overall, the Court ruled in a more flexible Copyright Law.

The Supreme Court of Canada’s Copyright Decisions Regarding Musical Works:

1. Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34

The Entertainment Software Association is a coalition of video game publishers and distributors who make downloadable copies of video games available online. SOCAN, who administer the right to “communicate” musical works with the permission of copyright holders, requested that the Copyright Board institute a tariff for downloading these video games, which include copyrighted musical works, on the internet. 

The Court declared that there would be no tariff administered on the musical works featured in the games because this would be a violation of the principle of “technological neutrality.” Basically, they found no real difference between buying a copy of a game in the store and downloading an identical copy off the internet. The act of downloading these works has been defined as a “delivery” via web, rather than as a “communication” which would allow SOCAN to administer a tariff.

View this decision here.

2. Rogers Communications Inc., Rogers Wireless Partnership, Shaw Cablesystems G.P., Bell Canada and TELUS Communications Company v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35

Rogers Communications Inc. and Wireless Partnership, Shaw Cablesystems G.P., Bell Canada, and TELUS Communications Company provide online services that stream and offer downloads of musical works. SOCAN proposed tariffs for the use of musical works via internet for the years 1996-2006, based on the idea that streaming these works is a “communication to the public,” making their claim for communications royalties legitimate.

The Court held that the on-demand streams are a “communication,” and therefore are subject to the tariff. Typically, one musical work that is available for internet streaming to a single individual is not considered a “communication.” The most important distinction that was made in this decision was that it was unreasonable to assume that a single work would not be repeatedly downloaded by different sources, and therefore should be subject to communication tariffs.

Downloads, however, remain tariff-free, because there is no difference between buying a copy of the work in a store or downloading it using the internet.

View this decision here.

3. Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36

In this case, the Court determined that SOCAN cannot collect royalties for downloads of musical previews, such as the 30-90 second previews of songs on Apple’s iTunes.

The previews were defined by the Court as “fair dealing” (similar to America’s “fair use” policy) for the purpose of “research.” The dealing of musical works associated with the previews is “fair” because the previews are temporary, cannot be duplicated, contain a small portion of the entire work, and are necessary research for consumers interested in the work.

Similar copyright issues appeared in America in 2009, but were also dropped most likely due to these previews promoting rises in music sales.

View this decision here.

4. Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38

Re:Sound, a representative of performers and creators of sound recordings, filed proposals for two tariffs claiming their right to royalties for the use of sound recordings in movies and television shows. However, under the Copyright Act the definition of a “sound recording” does not include soundtracks of movies and television.

The Court denied Re:Sound its proposed tariffs because of the Act’s definition of “sound recording.”

View this decision here.

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