Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada

Judgments of the Supreme Court of Canada

CITATION: Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35
DATE: July 12, 2012
DOCKET: 33922

Rogers Communications Inc., Rogers Wireless Partnership, Shaw Cablesystems G.P., Bell Canada and TELUS Communications Company
Society of Composers, Authors and Music Publishers of Canada
CMRRA-SODRAC Inc., Cineplex Entertainment LP, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Apple Canada Inc. and Apple Inc.

McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

Rothstein J.: (paras. 1 to 57)
McLachlin C.J. and LeBel, Deschamps, Fish, Cromwell, Moldaver and Karakatsanis JJ. concurring

Concurring: (paras. 58 to 88)
Abella J.

Show Headnote

The judgment of McLachlin C.J. and LeBel, Deschamps, Fish, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. was delivered by Rothstein J. –

I. Introduction

[1] Online music services offer permanent downloads, limited downloads and on-demand streams of files containing musical works. A download is the transmission over the Internet of a file containing data, such as a sound recording of a musical work, that gives the user a permanent copy of the file to keep as his or her own. A limited download allows the copy to be used as long as the user’s subscription is paid up. A stream is a transmission of data that allows the user to listen to or view the content transmitted at the time of the transmission, resulting only in a temporary copy of the file on the user’s hard drive. The Copyright Board was of the opinion that downloads and streams, among other uses of music that it examined as part of the certification process of a proposed tariff for the communication of musical works over the Internet, come within the scope of the exclusive right of copyright holders to communicate to the public by telecommunication provided by the Copyright Act, R.S.C. 1985, c. C-42 (the “Act”). Accordingly, it found that a claim for communication royalties by the holders of copyright in the communicated works was well founded, in addition to any reproduction royalties received when a work is copied through the Internet ((2007), 61 C.P.R. (4th) 353 (“Tariff 22.A”). On appeal, the Federal Court of Appeal agreed (2010 FCA 220, 409 N.R. 102).

[2] The sole issue in this appeal is the meaning of the phrase “to the public” in s. 3(1)(f) of the Act. The online music services brought this appeal on the basis that their uses of music do not engage the right to communicate to the public by telecommunication in s. 3(1)(f) because they do not come within the scope of the phrase “to the public”. The issue of whether downloads can be “communication[s]” within the meaning of s. 3(1)(f) was left to be determined in the companion case Entertainment Software Assn. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 34 (“ESA”). In ESA, a majority of this Court determined that musical works are not “communicated” by telecommunication when they are downloaded. This conclusion affects this appeal. The question of whether the online music services engage the exclusive right to “communicate … to the public by telecommunication” by offering downloads to members of the public has now become moot. However, the ESA did not contest the Board’s conclusion that a stream constitutes a “communication” within the meaning of s. 3(1)(f) of the Act. As a result, the remaining issue here is whether, based on CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13,[2004] 1 S.C.R. 339(“CCH”), such communication of protected works nevertheless does not engage the exclusive right to communicate to the public because a point-to-point transmission from the website of an online music service to any individual customer is a private communication.

II. Facts and Procedural History

[3] The appellants, Rogers Communications Inc., Rogers Wireless Partnership, Shaw Cablesystems G.P., Bell Canada and Telus Communications Company, offer online music services. Online music services provide catalogues of digital audio files that consumers can browse at their convenience. A consumer may select a song or an album and download or stream the digital audio file containing the musical work to his or her computer or mobile phone, or both.

[4] The respondent, Society of Composers, Authors, and Music Publishers of Canada (“SOCAN”), is a collective society of composers, authors and publishers of music. It administers the right to perform in public and the right to communicate to the public by telecommunication the works covered by its members’ copyrights. It files proposed tariffs with the Board and collects licence royalties, as set in tariffs certified by the Board, on behalf of its members.

[5] The issue in the present appeal is now whether streaming of files from the Internet triggered by individual users constitutes communication “to the public” of the musical works contained therein by online music services who make the files available to the users for streaming.

[6] These proceedings involve proposed tariffs first filed by SOCAN in 1995 for various uses of musical works constituting, in SOCAN’s view, communication of musical works to the public over the Internet. There were objections to the filed proposals. In 1996, the Board decided to deal with legal issues separately from the determination of the actual tariffs. The first step was to “determine which activities on the Internet, if any, constitute a protected use [of SOCAN’s repertoire of music] targeted in the tariff” (SOCAN Statement of Royalties, Public Performance of Music Works 1996, 1997, 1998 (Tariff 22, Internet) (Re) (1999), 1 C.P.R. (4th) 417 (Tariff 22” decision), at p. 424). Issued on October 27, 1999, the Board termed this its Phase I decision, dealing with legal and jurisdictional issues. Some of its determinations are directly relevant to this appeal. The Tariff 22 decision was ultimately appealed to this Court, albeit on different issues. However, in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 (“SOCAN v. CAIP”), at para. 30, Binnie J. noted the Board’s interpretation of the phrase “to the public”, which was that a communication may be to the public when it is made to individual members of the public, regardless of whether they receive it at the same or at different times (Tariff 22 decision, at p. 435). He found that this particular issue was “no longer contested.”

[7] After this Court’s decision in SOCAN v. CAIP, the Board proceeded to Phase II of the process to establish a tariff for the communication of musical works over the Internet for the years 1996 to 2006. In these proceedings, the Appellants argued both before the Board and subsequently on judicial review, that a point-to-point transmission of a musical work is not a communication “to the public”. This argument is in large part based on CCH and on the finding in that case that fax transmissions of copyrighted works by the Great Library at Osgoode Hall to its patrons were private communications.

[8] The Board rejected this argument in its decision issued on October 18, 2007 (“Tariff 22.A” decision). The Tariff 22.A decision reiterates the Board’s earlier-stated view that communications to individual members of the public through downloads or streams requested by them at different times are communications “to the public”. Accordingly, finding SOCAN’s claim to be valid in law, the Board proceeded to establish the tariffs it considered appropriate.

[9] The appellants’ application for judicial review was unanimously dismissed by the Federal Court of Appeal. Pelletier J.A., writing for the court, considered that the application should be reviewed on the standard of reasonableness and found the Board’s determination of what constitutes a “communication to the public” under the Act to be reasonable.

III. Analysis

A. Standard of Review

[10] The appropriate standard for reviewing the Board’s determinations on points of law was considered by Binnie J. in SOCAN v. CAIP. In concluding that the correctness standard must apply, he wrote, at para. 49:

[11] Since that decision, this Court has substantially revised the appropriate approach to judicial review. Dunsmuir v. New Brunswick, 2008 SCC 9,[2008] 1 S.C.R. 190, made clear that an administrative body interpreting and applying its home statute should normally be accorded deference on judicial review. See also Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (“Canada (CHRC)”), at para. 16, and Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at para. 26. In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 39, the Court held that “[w]hen considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness.” By setting up a specialized tribunal to determine certain issues the legislature is presumed to have recognized superior expertise in that body in respect of issues arising under its home statute or a closely related statute, warranting judicial review for reasonableness.

[12] As stated by Binnie J. in SOCAN v. CAIP, the core of the Board’s mandate is “the working out of the details of an appropriate royalty tariff” (para. 49). Nevertheless, in order to carry out this mandate, the Board is routinely called upon to ascertain rights underlying any proposed tariff. In this, it is construing the Act, its home statute.

[13] However, as Binnie J. noted in SOCAN v. CAIP, the Act is a statute that will also be brought before the courts for interpretation at first instance in proceedings for copyright infringement. The court will examine the same legal issues the Board may be required to address in carrying out its mandate. On appeal, questions of law decided by the courts in these proceedings would be reviewed for correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.

[14] It would be inconsistent for the court to review a legal question on judicial review of a decision of the Board on a deferential standard and decide exactly the same legal question de novo if it arose in an infringement action in the court at first instance. It would be equally inconsistent if on appeal from a judicial review, the appeal court were to approach a legal question decided by the Board on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question.

[15] Because of the unusual statutory scheme under which the Board and the court may each have to consider the same legal question at first instance, it must be inferred that the legislative intent was not to recognize superior expertise of the Board relative to the court with respect to such legal questions. This concurrent jurisdiction of the Board and the court at first instance in interpreting the Copyright Act rebuts the presumption of reasonableness review of the Board’s decisions on questions of law under its home statute. This is consistent with Dunsmuir, which directed that “[a] discrete and special administrative regime in which the decision maker has special expertise” was a “facto[r that] will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied” (para. 55). Because of the jurisdiction at first instance that it shares with the courts, the Board cannot be said to operate in such a “discrete … administrative regime”. Therefore, I cannot agree with Abella J. that the fact that courts routinely carry out the same interpretive tasks as the board at first instance “does not detract from the Board’s particular familiarity and expertise with the provisions of the Copyright Act” (para. 11). In these circumstances, courts must be assumed to have the same familiarity and expertise with the statute as the board. Accordingly, I am of the opinion that in SOCAN v. CAIP, Binnie J. determined in a satisfactory manner that the standard of correctness should be the appropriate standard of review on questions of law arising on judicial review from the Copyright Board (Dunsmuir, at para. 62).

[16] I must also respectfully disagree with Abella J.’s characterization, at para. 5, of the holding in ATA as meaning that the “exceptions to the presumption of home statute deference are … constitutional questions and questions of law of central importance to the legal system and outside the adjudicator’s specialized expertise”. Dunsmuir had recognized that questions which fall within the categories of constitutional questions and questions of general law that are both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise were to be reviewed on a correctness standard (Dunsmuir, at paras. 58 and 60). ATA simply reinforced the direction in Dunsmuir that issues that fall under the category of interpretation of the home statute or closely related statutes normally attract a deferential standard of review (ATA, at para. 39; Dunsmuir, at para. 54). My colleague’s approach would in effect mean that the reasonableness standard applies to all interpretations of home statutes. Yet, ATA and Dunsmuir allow for the exceptional other case to rebut the presumption of reasonableness review for questions involving the interpretation of the home statute.

[17] My colleague refers to pre-Dunsmuir decisions for the proposition that shared jurisdiction at first instance does not prevent reasonableness review of a tribunal’s decision under its home statute. However, such precedents will only be helpful where they “determin[e] in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question” (Dunsmuir, at para. 62).

[18] The recent examples raised by Justice Abella where reasonableness review was applied all involved bodies with exclusive primary jurisdiction under their home statute, constituting “discrete … administrative regime[s]”. Canada (CHRC) concerned the Canadian Human Rights Act, R.S.C. 1985, c. H-6, which does not create shared primary jurisdiction between the administrative tribunal and the courts. In these circumstances, the Court simply found that the standard applicable on the facts of that case was the reasonableness standard and confirmed the presumptive rule that “if the issue relates to the interpretation and application of its own statute, … the standard of reasonableness will generally apply” (para. 24 (emphasis added)). Doré v. Barreau du Québec, 2012 SCC 12, involved the judicial review of a decision of a disciplinary body under a professional Code of ethics of advocates,R.R.Q. 1981, c. B-1, applicable to lawyers. There was no question of the constitutionality of the provision in the Code of ethics. The question, rather, was whether the adjudicator, making his fact-specific determination in the circumstances of that case, had “act[ed] consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). In any case, the adjudicator was operating as part of a discrete administrative regime with exclusive jurisdiction over disciplinary matters under the Code of ethics.

[19] I wish to be clear that the statutory scheme under which both a tribunal and a court may decide the same legal question at first instance is quite unlike the scheme under which the vast majority of judicial reviews arises. Concurrent jurisdiction at first instance seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts. However, I leave the determination of the appropriate standard of review of a tribunal decision under other intellectual property statutes for a case in which it arises. Nothing in these reasons should be taken as departing from Dunsmuir and its progeny as to the presumptively deferential approach to the review of questions of law decided by tribunals involving their home statute or statutes closely connected to their function.

[20] It should be equally clear that the Board’s application of the correct legal principles to the facts of a particular matter should be treated with deference, as are the decisions of this nature by trial judges on appellate review. However, I cannot agree with Abella J. that the question arising in this appeal is a question of mixed fact and law (para. 74). The issue in this case has been argued by the parties as a pure question of law. The Court is asked to determine whether a point-to-point transmission can ever constitute a communication “to the public” within the meaning of s. 3(1)(f) of the Copyright Act (A.F. at para. 2). This is not a “questio[n] of mixed fact and law [that] involve[s] applying a legal standard to a set of facts” (Housen v. Nikolaisen, at para. 26); it is an extricable question of law.

B. Can a Point-to-Point Transmission Effected at the Request of the Recipient Be a Communication “to the Public”?
(1) Arguments of the Parties and Relevant Legislative Provisions

[21] Before this Court, the appellants maintain that a point-to-point communication by telecommunication of a discrete copy of a musical work is not a communication to the public, regardless of whether another copy of the same work is transmitted to a different customer at a different time. They argue that “the [Federal Court of Appeal’s] decision is directly contrary to … CCH”, where “all three Courts concluded that the Great Library’s facsimile service did not infringe the right to communicate to the public by telecommunication – based on analyzing whether each transmission was a communication to the public” (A.F., at paras. 8, 45 (emphasis in original)). The appellants further support their position by reference to the legislative history of s. 3(1)(f) of the Actand U.S. authorities. SOCAN views the decisions of the Board and of the F.C.A. as correct and consistent with relevant international copyright conventions.

[22] The legal question in this appeal involves the interpretation of s. 3 of the Act. The right to communicate to the public by telecommunication is set out in s. 3(1)(f) of the Act.

[23] Section 2 broadly defines “telecommunication” as “any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system”. There is no dispute in this appeal that the communications in issue are “telecommunications” within the meaning of the Copyright Act.

(2) The Precedent in CCH: Interpreting “to the Public”

[24] The words “to the public” within the meaning of s. 3(1)(f) of the Act were considered in CCH. The Great Library offered the service of faxing reported judgments and excerpts of other legal materials to individual lawyers at the lawyer’s request. The publishers holding copyrights in the transmitted works argued that the fax transmissions of copies of their works to individual lawyers were communications to the public by telecommunication by the Great Library. Contrasting this situation with telecommunications in the context of subscription or pay-per-view television, at trial, Gibson J. found no communication to the public since “the telecommunications, by facsimile, emanated from a single point and were each intended to be received at a single point” ([2000] 2 F.C. 451 (T.D.), at para. 167).

[25] The conclusion was affirmed on appeal by the Federal Court of Appeal (2002 FCA 187, [2002] 4 F.C. 213) and this Court. This Court, as did the F.C.A., held that “transmission of a single copy to a single individual is not a communication to the public”: CCH (SCC), at para. 78; CCH (FCA), at paras. 101 and 253). Both sets of reasons in the Federal Court rely on the ordinary meaning of the phrase “to the public”, as well as the definition of “public” in art. 1721(2) of North American Free Trade Agreement, Can. T.S. 1994 No. 2 (“NAFTA”), to conclude that “to be ”to the public’ a communication must be targeted at an aggregation of individuals, which is more than a single person but not necessarily the whole public at large” (Linden J.A. at para. 100) (emphasis added). This Court agreed with the F.C.A.’s conclusion (para. 78).

[26] However, this Court expressly limited its ruling to the facts in CCH. McLachlin C.J. wrote:

(3) A Disagreement Based on Perspective

[27] Both parties in this appeal rely on CCH in support of their respective positions. They disagree, however, on the meaning of the caveat in CCH that “a series of repeated fax transmissions of the same work to numerous different recipients might constitute communication to the public in infringement of copyright”. The appellants argue that all three courts in CCH ruled that each transmission must be analyzed on its own, as a separate transaction, regardless of whether another communication of the same work to a different customer may occur at a later point in time. They submit that a “series of repeated fax transmissions of the same work to numerous different recipients might constitute communication to the public in infringement of copyright” only where the series of transmissions to multiple users originate from a single act by the sender. They provide the example of multiple fax transmissions occurring successively as a result of a decision by the sender to fax to multiple recipients (“a broadcast fax” (A.F., at para. 70)). This is distinguishable in their view from discrete point-to-point transmissions which result from multiple unrelated acts by the sender. In SOCAN’s view, there is no requirement in CCH that the series of transmissions originate from a single act of the sender.

[28] The disagreement is based on perspective. Where the appellants argue that we must consider the recipient of each transmission, SOCAN and the decisions below focused on the sender’s activities in communicating a given work over time.

(4) Transmissions Must Be Looked at in Context

[29] In my respectful view, the appellants’ proposition is untenable. Such a rule would produce arbitrary results. For example, where a copyright-protected work is sent to 100 randomly selected members of the general public by way of a single e-mail with multiple recipients, on the appellants’ approach, this would constitute a communication “to the public”. However, under the same approach, the sender could avoid infringing copyright simply by executing the same task through sending separate e-mails to each of the 100 recipients. If the nature of the activity in both cases is the same, albeit accomplished through different technical means, there is no justification for distinguishing between the two for copyright purposes.

[30] Focusing on each individual transmission loses sight of the true character of the communication activity in question and makes copyright protection dependant on technicalities of the alleged infringer’s chosen method of operation. Such an approach does not allow for principled copyright protection. Instead, it is necessary to consider the broader context to determine whether a given point-to-point transmission engages the exclusive right to communicate to the public. This is the only way to ensure that form does not prevail over substance.

[31] Sharlow J.A. addressed this issue in Canadian Wireless Telecommunications Assn. v. Society of Composers, Authors and Music Publishers of Canada, 2008 FCA 6, [2008] 3 F.C.R. 539, leave to appeal refused [2008] 2 S.C.R. vi (“CWTA”), holding that a person offering members of the public the opportunity to download ringtones for their mobile phones thereby communicates the musical works contained in the ringtones to the public. She wrote that this approach

(5) The Appellants’ Interpretation Would Exclude All On-Demand Transmissions

[32] In oral argument, counsel for the appellants seemed to go somewhat beyond the mere technicality of the transmissions by looking at the intention of the sender in accomplishing a given transmission. In the case of a “blas[t]” communication, he pointed out that the sender has “take[n] it upon [himself] to send [the work] out” (Transcript, at p. 24). By contrast, in the case of a one-to-one transmission, at least that from an online music service to a customer at the customer’s request, or from the Great Library in CCH to a patron, he argued that there is no intention that the same work ever be transmitted again “because it is entirely at the request of the consuming public” (p. 26). In the appellants’ view, this would justify differential treatment of the point-to-point transmission and the “blas[t]” communication.

[33] With respect, this proposition too must be rejected, for the same reason that focusing the analysis on the recipient of a transmission rather than on the overall context of the communication produces results inconsistent with the true character of the communication. The facts of this case underscore the point. The Board found that “[d]ownloads are ”targeted at an aggregation of individuals’” and are “offered to anyone with the appropriate device who is willing to comply with the terms” (para. 97). It is hardly possible to maintain that “there is no intention that the same work ever be transmitted again”.

[34] In addition, the appellants’ proposed rule that each transmission be analyzed in isolation because each is initiated at the request of individual members of the public would have the effect of excluding all interactive communications from the scope of the copyright holder’s exclusive rights to communicate to the public and to authorize such communications. A stream is often effectuated at the request of the recipient. On-demand television allows viewers to request and view the desired program at the time of their choosing. By definition, on-demand communications – relating to the so-called “pull” technologies – are initiated at the request of the user, independently of any other user, and each individual transmission happens in a point-to-point manner. None of these telecommunications would be considered as being made “to the public” simply because the actual transmission occurs at the initiative and discretion of the consumer to accept the invitation to the public to access the content.

[35] Nothing in the wording of s. 3(1)(f) of the Act implies such a limitation. A communication is not restricted to a purely non-interactive context.

(6) Section 3(1)(f) Is Not Limited to Traditional “Push” Technologies; It Is Technology-Neutral

[36] The right to communicate to the public is historically linked to traditional media that operated on a broadcasting, or “push”, model. As pointed out by the appellants, the predecessor to s. 3(1)(f) guaranteed copyright holders an exclusive right to communicate literary, dramatic, musical or artistic works by radio-communication. The predecessor section was introduced in 1931, implementing Article 11bis of the Berne Convention for the Protection of Literary and Artistic Works, 828 U.N.T.S. 221 (Rome Revision of 1928): J. S. McKeown, Fox on Canadian Law of Copyright and Industrial Designs, (4th ed. (loose-leaf), at p. 21:86; Composers, Authors and Publishers Assoc. of Canada Ltd. v. CTV Television Network Ltd., [1968] S.C.R. 676, at p. 681. Radio-communications were understood to include transmissions by microwave over the airwaves: Canadian Admiral Corp. v. Redifussion, Inc., [1954] Ex. C.R. 382. As such, the radio-communication right extended to radio and traditional over-the-air television broadcasting, notably leaving transmissions by cable outside of copyright protection.

[37] This technology-specific communication right was amended to the technologically neutral right to “communicate … to the public by telecommunication” to reflect the obligations entered into by Canada under NAFTA (Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 61 and 62). The change from radio-communication to telecommunication meant that Canadian cable companies which previously escaped any payment of royalties under the “radio-communication” right, were now caught by the Act: S. Handa, Copyright Law in Canada, (2002), at p. 320.

[38] The historic relationship between the right to communicate to the public and broadcasting-type, “push” technologies, and the 1988 amendment in particular, is evidence that the Act has evolved to ensure its continued relevance in an evolving technological environment. The historic relationship does not support reading into the Act restrictions which are not apparent from and are even inconsistent with the neutral language of the Act itself.

[39] In addition, this Court has long recognized in the context of the reproduction right that, where possible, the Act should be interpreted to extend to technologies that were not or could not have been contemplated at the time of its drafting: Apple Computer Inc. v. Mackintosh Computers Ltd., [1987] 1 F.C. 173 (T.D.), aff’d [1988] 1 F.C. 673 (C.A.), aff’d [1990] 2 S.C.R. 209. That the Act was to apply to new technologies was recently reaffirmed in Robertson v. Thomson Corp., [2006] 2 S.C.R. 363, at para. 49, per LeBel and Fish JJ.:

[40] Ultimately, in determining the extent of copyright, regard must be had for the fact that “[t]he Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336, at para. 30). This balance is not appropriately struck where the existence of copyright protection depends merely on the business model that the alleged infringer chooses to adopt rather than the underlying communication activity. Whether a business chooses to convey copyright protected content in a traditional, “broadcasting” type fashion, or opts for newer approaches based on consumer choice and convenience, the end result is the same. The copyrighted work has been made available to an aggregation of individuals of the general public.

(7) Developments at the International Level Are Consistent in Encompassing On-Demand Communications to the Public in Copyright Protection

[41] Developments at the international level are consistent with this conclusion. Article 11bis of the Berne Convention, of which Canada is a party, sets out certain communication rights in literary and artistic works:

[42] As stated earlier, s. 3(1)(f) is based on Article 11bis of the Berne Convention.

[43] The advent of on-demand technologies, and the Internet in particular, led to questions as to whether such new telecommunication technologies were encompassed in the communication right existing under the Berne regime. While it was possible to interpret the relevant articles as extending to on-demand transmissions over the Internet, there was ambiguity: S. Ricketson and J. Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond, (2nd ed. 2006) vol. I, at para. 12.48. For example, the word “broadcasting” used in Article 11bis(1) “may well imply widely sending a communication simultaneously to many recipients” (para. 12.49).

[44] In 1996, the WIPO Copyright Treaty (“WCT”) was entered into. The WCT is a special agreement within the meaning of Article 20 of the Berne Convention, which stipulates that “[t]he Governments of the countries of the [Berne] Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. …” (see Article 1(1) of the WCT).

[45] Article 8 of the WCT reads:

[46] Ricketson and Ginsburg comment on the meaning and legislative history of Article 8 in these terms:

[47] The WIPO Intellectual Property Handbook: Policy, Law and Use, chapter 5, “International Treaties and Conventions on Intellectual Property”, No. 489, (2nd ed. 2004), comments that the “WCT […] clarifies that that right also covers transmissions in interactive systems … (para. 5.226 (emphasis added)).

[48] In the end, “[t]he core concept of ”making available’ … can fairly be called neither a reaffirmation nor a novelty, for it resolves an ambiguity as to whether the old communication to the public rights accommodated or excluded ”pull technologies’.” (J. C. Ginsburg, “The (new?) right of making available to the public”, in D. Vaver and L. Bently, eds., Intellectual Property in the New Millenium: Essays in Honour of William R. Cornish (2004), 234, at p. 246.)

[49] Canada has signed, but not yet ratified or legislatively adopted the WCT. Therefore, the WCT is not binding in this country. The WCT is only cited to demonstrate that the broad interpretation of s. 3(1)(f) of the Act, recognizing that a communication “to the public” subject to copyright protection may occur through point-to-point transmissions at the user’s request, is not out of step with Article 8 of the WCT and international thinking on the issue.

(8) American Jurisprudence

[50] The appellants’ remaining argument is based on American jurisprudence. This argument must also be dismissed. They mainly rely on the decision of the Court of Appeals for the Second Circuit in Cartoon Network v. CSC Holdings, Inc., 536 F.3d 121 (2008), in which it was held that the potential audience of each point-to-point transmission must be considered to determine whether a given transmission is “to the public”. The Second Circuit Court of Appeals found in that case that the transmissions were not “to the public”.

[51] This case is of no assistance to the appellants. The Court of Appeals for the Second Circuit relied on the specific language of the U.S. “transmit clause”. It held that the language of the clause itself directs considering who is “capable of receiving” a particular “transmission” or “performance”, and not of the potential audience of a particular “work” (p. 134). Quite to the contrary, our Copyright Act speaks more broadly of “communicat[ing a] work to the public”. This Court has recognized in the past important differences both in wording and in policy between Canadian and American copyright legislation. It has warned that “United States court decisions, even where the factual situations are similar, must be scrutinized very carefully” (see: Compo Co. v. Blue Crest Music Inc. et al., [1980] 1 S.C.R. 357, at p. 367). The difference in statutory wording between the relevant provisions of the American legislation and of the Canadian Copyright Act is sufficient to render the U.S. decisions of no assistance in the interpretive exercise engaged here.

(9) Summary

[52] These considerations are sufficient to dispose of the appellants’ argument that a point-to-point transmission is necessarily a private transaction outside of the scope of the exclusive right to communicate to the public. To quote Sharlow J.A., at para. 35 of CWTA,

IV. Application to the Facts – Whether Online Music Services “Communicate to the Public”

[53] Although they occur between the online music provider and the individual consumer in a point-to-point fashion, the transmissions of musical works in this case, where they constitute “communications”, can be nothing other than communications “to the public”.

[54] Online music services provide catalogues of musical works. It is open to any customer willing to pay the purchase price to download or stream the works on offer. The works in the catalogues could as a result be transmitted to large segments of the public – if not the public at large. Through the commercial activities of the online music services, the works in question have the potential of being put in the possession of an aggregation of customers. Indeed, the appellants’ business model is premised on the expectation of multiple sales of any given musical work. Achieving the highest possible number of online sales is the very raison d’être of online music services. The number of actual transmissions depends only on the commercial success of a given work. The necessary implication of this business model is that there will be a “series of repeated … transmissions of the same work to numerous different recipients” (CCH (SCC), at para. 78). The conclusion that a communication “to the public” occurs is consistent with reality. As Professor Vaver explains,

[55] These facts are distinguishable from those in CCH and the holding in that case does not assist the appellants. The publishers alleging infringement in CCH had presented no evidence that the Great Library was communicating the same works in a serial fashion or that the Great Library had made the works generally available at any lawyer’s request. The Great Library’s employees examined and accordingly accepted or refused every request on its own merits, thus retaining control over access to the works.

[56] Following the online music services’ business model, musical works are indiscriminately made available to anyone with Internet access to the online music service’s website. This means that the customers requesting the streams are not members of a narrow group, such as a family or a circle of friends. Simply, they are “the public”. In these circumstances, the transmission of any file containing a musical work, starting with the first, from the online service’s website to the customer’s computer, at the customer’s request, constitutes “communicat[ing] the work to the public by telecommunication”.

V. Conclusion

[57] The appeal is allowed in respect of downloads for the reasons set out by the majority in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, and dismissed in respect of music streamed from the Internet in accordance with these reasons. In view of the divided result, each party should bear its own costs.

Show Concurring Reasons by Abella J.

Appeal allowed in part.

Solicitors for the appellants: Fasken Martineau DuMoulin, Ottawa.

Solicitors for the respondent: Gowling Lafleur Henderson, Ottawa.

Solicitors for the intervener CMRRA-SODRAC Inc.: Cassels Brock & Blackwell, Toronto.

Solicitors for the intervener Cineplex Entertainment LP: Gilbert’s, Toronto.

Solicitor for the intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic: University of Ottawa, Ottawa.

Solicitors for the interveners Apple Canada Inc. and Apple Inc.: Goodmans, Toronto.

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