Friday, March 25, 2011

Three Copyright Cases to be Heard by Supreme Court of Canada - More To Come?


March 25, 2011

The Supreme Court of Canada has somewhat surprised several observers by granting leave to appeal in the ESA and Rogers applications (see below) involving "communication" arising from the SOCAN Tariff 22 case and ordered that they be heard together with the SOCAN iTunes "previews" case, also involving Tariff 22.  Counsel for the ESA and the ISPs deserve congratulations for getting the Court to hear these cases, given the rather uphill battle that was involved in terms of previous jurisprudence and an early surprising  concession in ringtones case  - later withdrawn - by wireless companies that electronic delivery of ringtones was indeed a "communication".

Tariff 22 in its latest iteration from the Copyright Board was broken down into several separate cases for judicial review purposes last year in the Federal Court of Appeal. Tariff 22 had already been to the Supreme Court of Canada once. It deals generally with music on the internet and has provided substantial remuneration for several lawyers since 1995. The end game is still nowhere in sight.

This will be an interesting hearing -  since the two "communications" cases have, apart from the fact that they involve copyright and "standard of review" issues and Tariff 22, little in common in terms of essential and important issues with 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 interveners - as one may expect.

On March 21, the CMEC leave application - which is also all about fair dealing but has nothing to do with SOCAN's Tariff 22 - was finally referred to a panel. It 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 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.

In many respects, the CMEC case would have seemed the most likely of all these cases to be granted leave to appeal. It is the natural counterpart to the SOCAN previews case - coming to an apparently inconsistent conclusion and emanating from the same Court at about the same time. It arguably involves a far more general and important issue - namely the parameters of fair dealing in education - than the iTunes "previews" case. However, it is the one that is being held in suspense - as are the many observers watching it with great interest.

A possible explanation of what is transpiring is that the Supreme Court of Canada has decided to deal with the Tariff 22 internet cases together and is treating the CMEC case as a stand alone matter. The CMEC case does not directly involve the internet.

The Court also granted leave to appeal yesterday on another internet related case yesterday involving whether ISPs can be "broadcasters".


From March 21, 2011:

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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