Wednesday, November 28, 2012

SOCAN's Position at the Copyright Board on SCC ESAC Judgment and Making Available Right

From:                     "Estabrooks, Matthew"
To:                            XXXXXXXXXXXXXXXXXX
CC:                          , "Watt, Lynne" ...
Date:                       28/11/2012 11:30 am
Subject:                  Making Available Right

Dear Counsel/Tariff 22 Objectors,
We are writing in connection with the recent coming into force of
several sections of Bill C‑11 (Copyright Modernization Act) on November
7, 2012.  Among those sections is the new section 2.4(1.1), which reads
as follows:

 2.4(1.1)  For the purposes of this Act, communication of a work or other
subject‑matter to the public by telecommunication includes making it
available to the public by telecommunication in a way that allows a
member of the public to have access to it from a place and at a time
individually chosen by that member of the public.
It is SOCAN's position that the new making available right ("MAR")
renders moot and inapplicable the recent conclusion reached by the
Supreme Court of Canada in ESA v. SOCAN, 2012 SCC 34, (and the Rogers
companion case) that the Act's section 3(1)(f) communication right does
not apply to downloads of musical works.  SOCAN's position is that, as a
result of new section 2.4(1.1), users of music on the Internet are
liable to pay communication right royalties to SOCAN when they post
musical works on their Internet servers in a way that allows access to
them by their end‑user customers, irrespective of whether the musical
works are subsequently transmitted to end‑users by way of downloads,
streams or at all.
We are aware that a number of objectors take a different position and
the legal implications of the new MAR will therefore have to be
determined by the Board.  The issue has already been put "on the table"
as part of upcoming proceedings for the determination of SOCAN Tariff
22.A for Online Music Services.  However, the issue is not limited to
Tariff 22.A uses and may be relevant to Objectors to the other
components of Tariff 22 as well.  For that reason, we suggest that the
Tariff 22.A procedure on this legal issue be expanded to include all
participants who may have an interest in its determination.  Our
understanding is that a number of Objectors would be amenable to
proceeding in that manner.
In SOCAN's view, this is a pure legal issue that can and should be
determined by the Board without the need of interrogatories and/or the
presentation of new evidence, with the following steps:
No later than Friday, December 21:        Filing of Legal Brief by SOCAN
No later than Friday, February 1:            Filing of Legal Briefs by
No later than Friday, February 15:           Filing of Reply by SOCAN

 Date to be determined for oral arguments, if deemed necessary.
We look forward  to hearing your response to SOCAN's proposal as soon as
Matthew Estabrooks
T 613‑786‑0211


Gowling Lafleur Henderson LLP
Lawyers * Patent and Trade‑mark Agents
160 Elgin Street, Suite 2600
Ottawa, Ontario
K1P 1C3 Canada
T 613‑233‑1781  F 613‑563‑9869


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