The Tariff 22 JR Opening Parade

The Tariff 22 Judicial Review ("JR") applications are lining up and the notices are being served. Judicial review is, in effect, an "appeal" from a tribunal decision, in this case from the Copyright Board.

So far, I've seen the JR notices from SOCAN, Shaw and CRIA.

SOCAN doesn't like the fair dealing ruling regarding previews. One hears that there was a lot of pressure on SOCAN from other content owners to try to overturn this. Many copyright owners and most collectives hate the concept of "fair dealing", which the Supreme Court of Canada has affirmed as a user's right that must be given a "large and liberal interpretation." Sadly, "fair dealing" is seen as threatening by the copyright owner/collective establishment and even some users are slow to recognize it. For example, in its widely used publication Copyright Matters!, CMEC seems to be in denial, or at least far too cautious, with respect to its interpretation of the benefits to its constituency of the landmark victory at the Supreme Court in CCH.

CRIA has raised several points that basically go to rate calculation (i.e. how to carve up the "pie", rather than than whether there ought to be a pie here in the first place).

SHAW has raised what is probably the most fundamental point in this instance - which is that:

The Board exceeded its jurisdiction and erred in law in holding that the transmission via the internet of a download of a musical work to an individual consumer is a communication to the public by telecommunication within the meaning of paragraph 3(1)(f) of the Copyright Act.

SHAW goes on to say:

More specifically, the Board exceeded its jurisdiction and erred in law in holding that:
a. the transmission of a download over the internet communicates the content of the download;
b. attempts to distinguish streams from downloads are based on technical and legal assumptions that are incorrect;
c. one or more transmissions of the same work, over the internet, by fax or otherwise, to one or more members of a public each constitute a communication to the public;
d. any file an online music service offers to consumers is communicated to the public as soon as one individual consumer “pulls” the file, by requesting that the file be delivered via the internet to that individual;
e. a communication is to the public even if recipients do not share a simultaneous (or near-simultaneous), common experience;
f. any attempt to compare delivery of music online with delivery of music on physical media is inherently flawed from a copyright perspective;
g. a person who communicates a work to a member of the public with a view to providing that person with a copy of the work commits two separate wrongs;

The issue of whether a "communication" right is entailed in a transmission to an individual is already before the Federal Court of Appeal in the Ring Tones case. I’ve mentioned before that the “communication” issue was conceded in the ring tones hearing, but the remaining objectors changed position on JR. I had originally argued at the Board against the applicability of a “communication” right, but my client decided to withdraw from that hearing.

The question of whether there is a communication right in addition to a performance right in certain circumstances is of the utmost importance in several tariffs.

We can already see the complexities arising from multiple payments to the same and/or different parties for the same transaction. This is the great folly that the Government embarked upon when, back in 1989 or so, it decided to attempt to capture virtually every “communication” and let the Board sort out the resulting redundancies and overkill.

Clearly, if the Federal Court of Appeal strikes down the “communication” theory, there will be lot of cleaning up to do at the Copyright Board. And if it does not, there will be a lot of messy tariffs with multiple payments to multiple parties for the same thing.

More JR notices are expected from the ESA (“Electronic Software Association”) and Bell Canada.

How long this will take to unfold, and what effect all of this will have on the remainder of the Tariff 22 decision yet to come are any body's guess. As I keep saying, the Tariff 22 process is already more than 12 years old. And it's not improving with age.

Instead of, as expected, inflicting unnecessary and now clearly wrong headed and obsolete DMCA legislation upon Canadians, and opening the floodgates to suing music fans and families, why doesn't the Government start to clean up the copyright environment with respect to this labyrinth of proliferating and redundant tariffs and collectives? It's a great situation for lawyers and consultants, but does very little, if anything, for most individual creators and is very costly to users who must spend enormous sums to stop the situation from getting even worse.

HK