Copyright Board to construe the making available right

December 7th, 2012 by Barry Sookman Leave a reply »

In the ESA v. SOCAN, 2012 SCC 34 case, the Supreme Court decided by a 5 to 4 majority that the transmission of a copy of a musical work to members of the public is not a communication to the public within the meaning of Section 3(1)(f) of the Copyright Act. When the Copyright Modernization Act was enacted the communication to the public right was expanded to expressly confer on copyright holders making available rights required by the WIPO Treaties. This was accomplished, inter alia, by the inclusion of Section 2.4(1.1) which provides that:

For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.

Since the amendments, questions have arisen as to whether they had the effect of reversing the decision of the Supreme Court in the ESA v SOCAN case. In particular, the amendments raise the question as to whether they merely confirmed what the Supreme Court decided in the Rogers v. SOCAN 2012 SCC 35 case – that the communication to the public right is a technologically neutral right that covers both push and pull, on-demand streams. Or did they extend the communication to the public right to also include push and pull, on-demand transmissions of copies of works?

The scope of the communication to the public right is central to several tariffs being considered by the Copyright Board. Accordingly, the Board is proposing that the issue be decided through a separate proceeding during which all those who may be affected by the decision will have the opportunity to make their views known. Earlier today, the Board issued the notice below to initiate the new proceeding.

NOTICE OF THE BOARD

SOCAN intends to ask that the Board deal with the impact of the coming into force of the making available right on its proposed tariffs. (See attached email) Specifically, SOCAN wishes the Board to rule on the interface between the making available right and ESA v. SOCAN [2012 SCC 34] and companion cases.

In a nutshell, SOCAN is of the view that the making available right renders moot the conclusion that the communication right does not apply to downloads of musical works. Without doubt, some users will take issue with that view.

The issue is properly before the Board as a necessary incident to the exercise of its core competence. It is not possible to set SOCAN Tariff 22.A (Online Music Services) without deciding the extent, if any, to which the enactment of subsection 2.4(1.1) of the Copyright Act and other companion amendments may “revive” SOCAN’s ability to collect royalties for the transmission of permanent copies of musical works.

The issue certainly is not limited to a single SOCAN tariff, and probably not limited to SOCAN itself. Any decision the Board may render on the meaning of the making available right with respect to musical works will have some impact on the interpretation of the same right with respect to other works, performances and recordings, especially if the Board’s decision is judicially reviewed.

The Board’s preliminary views on the issue are as follows.

First, the interpretation of the making available right essentially raises purely legal issues that require little (or preferably, no) discovery or presentation of new evidence.

Second, the issue would be best approached through a separate proceeding during which all those who may be affected by a decision of the Board may have an opportunity to make their views known.

Third, the examination of the issue should not change anything to the timetable of other proceedings, other than to carve out the interpretation of the making available right as an issue to be examined in those proceedings.

Fourth, it should be possible to deal with the issue through written submissions. Collectives would be allowed four weeks to file their legal arguments. Objectors would respond within four weeks and collectives would be allowed two weeks to reply. Accordingly, all pleadings would be filed before the end of March 2013. The possibility of oral arguments should be entertained only after the collectives’ replies have been filed.

Fifth, the following parties appear to be directly or indirectly concerned by the issue:

- any collective that may, now or later, act for those whose works, performances or recordings may be made available in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public;

- any objector who may make available a work, performance or recording in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public, including objectors to SOCAN tariffs 17 (Transmission of Pay, Specialty and other Television Services by Distribution Undertakings), 22.A (Online Music Services), G (User Generated Content), H (Game Sites) and I (Other Sites) as well as all other SOCAN 22 tariffs, to the extent that these are currently user-based, 23 (Hotel and Motel In-room Services), 24 (Ringtones and Ringbacks) and 25 (Satellite Radio Services).

Recipients of this notice are asked to inform the Board no later than Friday, December 21, 2012, of the following:

(a) whether they consider themselves to be affected by the issues to be determined and if so, how;

(b) whether they intend to participate in this proceedings;

(c) to the extent possible, their preliminary views on the issues to be determined; and

(d) any comments they may have on whether the issues to be determined should be addressed as proposed in this notice.

Responses to the comments of others should be received no later than Friday, January 11, 2013.

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