Federal Court of Appeal Dismisses Tariff 22.A Judicial Review Applications

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 communication.

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.

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