Canada: Intellectual Property — Copyright - When Do Broadcasters Reproduce Works? The Copyright Board Clarifies the Law in the Commercial Radio Tariff Case

The Copyright Board recently released its reasons in the Commercial Radio Tariff case, making a number of important statements about what constitutes a "reproduction" for the purposes of the Copyright Act. In particular, the Board canvassed the activities of broadcasters and examined which activities resulted in reproductions of musical works (and sound recordings) in the course of their broadcasting operations.

The case, which involved many different parties and issues, resulted in the certification of a tariff that covers a gamut of music uses by broadcasters in the course of their operations.

In its reasons for decision, the Board started its analysis by repeating what it had said in the Satellite Radio decision about the acts that are necessary for an activity to be a reproduction under the Act. For an activity to be a "reproduction," the act in question must involve: 1) the act of copying the protected work; 2) the copying must be "substantial"; and 3) the resulting copy must be in a material form.

The first element is derived from the Supreme Court's decision in Théberge v. Galerie d'Art du Petit Champlain inc. in which the court held that multiplication of the copies is a necessary consequence of the concept of reproduction. It must involve "the physical making of something which did not exist before."

The second element, what is a substantial part, is a question of fact and depends on the quality of what was taken from the original work rather than the quantity.

The third component, what is a material form, is not defined in the Act, but is a term of broad import. Relying on English and UK authorities, the Board stated that the case law recognizes that a material form can include "digital temporary incidental copies." The Board, citing the Federal Court decision in EROS-Équipe deRecherche Opérationnelle en Santé inc. v. Conseillers en Gestion et Informatique C.G.I. inc., stated that the ordinary meaning of material is something that is "palpable, tangible and perceptible." The Board also suggested that "material form" is broader than the copyright subsistence tangibility requirement which, since the decision in Canadian Admiral Corp. v. Rediffusion, Inc., has required that "for a work to be protected by the Act, a work must be expressed in some material form capable of identification and having a more or less permanent endurance."

The Board also made a number of other important statements about the concept of reproduction in the digital context including the following:

  • Relying on the decision of the US 9th Circuit Court of Appeals in the A & M Records Inc. v. Napster Inc. case, the Board stated that the act of downloading a musical file infringes the exclusive right of reproduction.
  • In CD ripping (the process of digitally extracting audio from CDs to a hard drive in WAV format), the resulting digital copy that emanates from the CD is in a material form and therefore protected by the Act.
  • In the context of Internet transmissions, words such as "copy" and "reproduction" probably have their ordinary meanings but others such as "transfer," "deliver," "download," "send" and "file" are more metaphors than actual facts.
  • When a broadcaster downloads a musical file from a website to a server at a station's facility, that act involves making a copy for which the broadcaster is responsible.
  • The fact that a reproduction results from an "internal, fully digital, technical process" is not relevant.

The objector, the Canadian Association of Broadcasters (CAB), had argued that a download of a music file does not become a reproduction until it is incorporated into the broadcaster's playback system. The Board rejected this contention. The evidence established that after downloading from a content distributor's website, the audio file is available for playback. The Act has no requirement that a reproduction be usable in any particular fashion. Therefore, there is no need for the file to be ingested in the broadcaster's digital playback system for there to be a reproduction. According to the Board:

The MDS [music delivery services] copy is just as much a reproduction as a permanent download. The online music service user who, after downloading a song, moves it to the "recycling bin" without ever playing it nevertheless reproduced the musical file. The same logic applies to the MDS copy that is downloaded onto the broadcasters' server, whether or not it is ingested in the playback system.

In the Commercial Radio Tariff proceeding, the Board, once again, had to consider the question as to whether a music-streaming service implicates the reproduction right. According to the Board, the determination of this question involves deciding whether the streaming service creates some form of temporary or permanent file, or only small amounts of temporary buffered information. In the former case, there would be a reproduction. In the latter case, while there might be some copying involved in the streaming process, such copying would not satisfy the "substantial part" requirement for reproduction under the Act. According to the Board:

The song audition function is another service that MDS offer broadcasters. It allows them to listen to a song before deciding whether or not they want to download a certain song. According to the experts who testified, no downloading occurs when a station "auditions" or "previews" a song; that function is enabled by streaming. As noted in the past, some forms of streaming nonetheless involve the creation of a temporary (or permanent) Internet file on the temporary folder of the end user's computer. Once the file has been played, the temporary copy is "flushed away" or appears to be erased but remains indefinitely in the temporary Internet file folder.

In this instance, this does not appear to be the case. Just as with the buffer in Satellite Radio Services, it fails to reproduce a substantial part of the copyright subject matter. Consequently, we conclude that the right of reproduction is not engaged in auditioning songs from the MDS server.

As noted in the last TLQ, Bill C-32, the Copyright Modernization Act would broaden the current ephemeral exception relied upon by broadcasters to permit them to temporarily copy music for their operations. It is unclear from the decision the extent to which this amendment would have made any difference in the royalties awarded by the Board.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.