In a decision impacting Internet Service Providers, online music
services and copyright owners, the Federal Court of Appeal has held
that a download of a music file from an online music service to a
single user is a communication of the musical work to the public
under the Copyright Act. As a result of the decision, the
Court of Appeal has confirmed that music downloads are now subject
to both "reproduction" tariff administered by the
collective society CSI and "communication to the public"
tariff administered by the collective society SOCAN.
In this case, the Federal Court of Appeal examined a 2007
decision of the Copyright Board of Canada certifying SOCAN Tariff
22.A for music transmitted over the Internet. The Board found that
the transmission of a musical work to an individual by an online
music service is a communication of that work to the public by
telecommunication within the meaning of paragraph 3(1)(f) of the
Act. As such, the Board determined that music downloads were the
proper subject for a communication to the public tariff, even
though the services sent downloads to individual subscribers rather
than the public at large.
A number of parties, including a few Internet Service Providers,
sought judicial review of the Board's decision. In reviewing
the Board's decision, the court suggested that the Board was
entitled to deference in its interpretation of the Act. (That
suggestion is somewhat surprising given that, in a prior judicial
review decision involving SOCAN Tariff 22, the Supreme Court of
Canada ruled that the standard of review on questions of law under
the Act was "correctness.")
The court found the Board's conclusion was reasonable and
dismissed the judicial review applications. In making its ruling,
the court reached the same conclusion respecting downloads to
individual members of the public as did a previous panel, which
decided the Tariff 24 Ringtones case, albeit for different
reasons. In this court's opinion, transmissions are "to
the public" if there is evidence that the sender intends to
transmit a file to "people in general" or "the
community," even if the sender reaches only one person with a
Also noteworthy is the fact that the court expressed the view
that a user of a peer-to-peer file-sharing network can be liable
under the communication to the public right, again because the
intention of such a person is to disseminate a work widely, albeit
for non-commercial reasons.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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