Monday, March 21, 2011

UPDATE - LEAVES GRANTED on March 24, 2011 on Leave to Appeal re "Communication" Right


March 24, 2011

The Court has just granted leave to appeal in the ESA and Rogers applications involving "communication" and ordered that they be heard together with the SOCAN previews case.  

This will be an interesting hearing -  since the two "communications" cases have, apart from the fact that they involve copyright and likely "standard of review", little to do on the surface with the "previews" case. The latter is is all about fair dealing. 

It will also be a potentially very busy day, especially if there are several interveners - as one may expect, assuming leave to intervene is granted.

On March 21, the CMEC leave application - which is also all about fair dealing - was finally referred to a panel. This is a different panel that the one that ruled on the other three applications. There is no ruling yet on the CMEC leave application. For whatever reason, the CMEC case is on a different and much slower track. It will be interesting to see if leave is granted in the CMEC case, and if so whether it is to be dealt with along with the above three matters or whether it will have its own day in the Court.


Two cases bubbling up from last years' round of judicial review decisions concerning the apparently never ending SOCAN Tariff 22 saga concern whether certain activity on the internet constitutes a "communication to the public by telecommunication". These applications are brought by the ESA and Rogers et al.

Both leave applications involve the issue of whether the delivery of copyrighted material as a download over the interenet to the public based upon one at a time request constitutes a "communication to the public by telecommunication" - thus invoking an additional payments on top of other payments that would have to be made. Thus, the proverbial and quintessentially Canadian notion of multiple layering of rights and costs - as reinforced by the Copyright Board's consistent decisions - is involved, along with a fundamental question of technological neutrality. That is, why should it cost more to deliver the same song from the same party to the same consumer via the internet rather than on a a plastic CD?

While this sounds like a perfect case for the Court to grant leave, one problem may be that that there is now a lot of water already under the bridge stemming from the rather surprising concession a few years ago by the wireless companies in the Copyright Board's ring tone case that "downloading a ringtone is a communication by telecommunication".

In any event, we shall learn this Thursday, March 24, 2011 whether these leave to appeal applications will be granted.

Meanwhile, still no word on whether CMEC's leave to appeal on fair dealing in the educational context will be granted. Curiously, this application has still not not gone forward to a panel for a decision. One would expect that this case would be heard by the Court, along with the SOCAN "previews" case, to which it is the other side of the coin and for which leave has already been granted.


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