"Watt, Lynne" ...
28/11/2012 11:30 am
Making Available Right
Counsel/Tariff 22 Objectors,
are writing in connection with the recent coming into force of
sections of Bill C‑11 (Copyright Modernization Act) on November
2012. Among those sections is the new
section 2.4(1.1), which reads
2.4(1.1) For the purposes of this Act, communication
of a work or other
to the public by telecommunication includes making it
to the public by telecommunication in a way that allows a
of the public to have access to it from a place and at a time
chosen by that member of the public.
is SOCAN's position that the new making available right ("MAR")
moot and inapplicable the recent conclusion reached by the
Court of Canada in ESA v. SOCAN, 2012 SCC 34, (and the Rogers
case) that the Act's section 3(1)(f) communication right does
apply to downloads of musical works.
SOCAN's position is that, as a
of new section 2.4(1.1), users of music on the Internet are
to pay communication right royalties to SOCAN when they post
works on their Internet servers in a way that allows access to
by their end‑user customers, irrespective of whether the musical
are subsequently transmitted to end‑users by way of downloads,
or at all.
are aware that a number of objectors take a different position and
legal implications of the new MAR will therefore have to be
by the Board. The issue has already been
put "on the table"
part of upcoming proceedings for the determination of SOCAN Tariff
for Online Music Services. However, the
issue is not limited to
22.A uses and may be relevant to Objectors to the other
of Tariff 22 as well. For that reason,
we suggest that the
22.A procedure on this legal issue be expanded to include all
who may have an interest in its determination.
is that a number of Objectors would be amenable to
in that manner.
SOCAN's view, this is a pure legal issue that can and should be
by the Board without the need of interrogatories and/or the
of new evidence, with the following steps:
later than Friday, December 21:
Filing of Legal Brief by SOCAN
later than Friday, February 1:
Filing of Legal Briefs by
later than Friday, February 15:
Filing of Reply by SOCAN
to be determined for oral arguments, if deemed necessary.
look forward to hearing your response to
SOCAN's proposal as soon as
Lafleur Henderson LLP
* Patent and Trade‑mark Agents
Elgin Street, Suite 2600
613‑233‑1781 F 613‑563‑9869