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

Objectors

 

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

possible.

 

Matthew Estabrooks

Associate

T 613‑786‑0211

matthew.estabrooks@gowlings.com

 ________________________________

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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