Federal Court of Appeal Renders Decision on Satellite Radio Judicial Review Applications

The Federal Court of Appeal dismissed two judicial review applications of the Copyright Board’s 2009 decision on satellite radio.

The decision contains several important copyright rulings. In particular:

  • When an entity provides a service for use with its own designed and manufactured devices (e.g., a satellite radio service and radio receiving set) and the use of the device with the service will necessarily result in automatic copying of the content by the user, the provider of the service (in this case, XM and Sirius) can be liable for the copying that occurs on the device under a theory of authorization.
  • The Copyright Act does not extend to acts of reproduction that take place wholly within another country (in this case, the US), even if the act of copying is authorized from Canada or if the act of copying is initiated from Canada. The real and substantial connection test is not applicable to acts that take place wholly within another country.
  • Copying of small amounts of information of a work in a rolling (temporary) buffer is not a reproduction of a substantial part of a work.

McCarthy Tétrault acted for Sirius on the judicial review applications.