The central issue in the Rogers case was whether the delivery of
musical works via the internet constitutes communication of the
musical works "to the public" by telecommunication,
within the meaning of paragraph 3(1)(f) of the Copyright Act, such
that copyright right holders should receive compensation.
The online music providers argued that downloads and streams of
musical works are best characterized as private communications -
transmissions of single copies of a work to single individuals -
and therefore are not communications "to the public."
The Copyright Board found that online music services are
communications to the public and established a tariff. An appeal to
the Federal Court of Appeal was dismissed.
Because of the reasons in the ESA case (wherein a download was
found not to be a "communication"), the Court found that
the issue of "to the public" in respect of downloads was
While musical works transmitted by streaming services are
point-to-point transmissions between providers and consumers,
Justice Rothstein nevertheless concluded that when understood in
their proper context these services are communications "to the
public." Achieving the highest possible number of online sales
was found to be the raison d'être for online music
services. Citing from Professor David Vaver's text, Justice
Rothstein concluded that if content is intentionally made available
to anyone who wants to access it, it is treated as communicated
"to the public" even if users access the work at
different times and place.
The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.
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