Date: 20110225
Docket: A-433-09
Citation: 2011 FCA
70
CORAM: NOËL J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
RE:SOUND
Applicant
and
MOTION PICTURE THEATRE
ASSOCIATIONS OF CANADA,
ROGERS COMMUNICATIONS INC., SHAW
COMMUNICATIONS INC.,
BELL EXPRESSVU LLP, COGECO CABLE INC.,
EASTLINK, QUEBECOR MEDIA,
TELUS COMMUNICATIONS COMPANY, TURNER
BROADCASTING SYSTEMS, INC.,
CANADIAN BROADCASTING CORPORATION,
and CANADIAN ASSOCIATION OF
BROADCASTER
Respondents
Heard at Montréal, Quebec, on February
22, 2011.
Judgment delivered at Ottawa,
Ontario, on February
25, 2011.
REASONS FOR JUDGMENT BY: TRUDEL
J.A.
CONCURRED
IN BY: NOËL
J.A.
MAINVILLE
J.A.
Date:
20110225
Docket: A-433-09
Citation: 2011 FCA 70
CORAM: NOËL
J.A.
TRUDEL J.A.
MAINVILLE
J.A.
BETWEEN:
RE:SOUND
Applicant
and
MOTION PICTURE THEATRE ASSOCIATIONS OF CANADA,
ROGERS COMMUNICATIONS INC., SHAW
COMMUNICATIONS INC.,
BELL EXPRESSVU LLP, COGECO CABLE INC.,
EASTLINK, QUEBECOR MEDIA,
TELUS COMMUNICATIONS COMPANY, TURNER
BROADCASTING SYSTEMS, INC.,
CANADIAN BROADCASTING CORPORATION,
and CANADIAN ASSOCIATION OF
BROADCASTER
Respondents
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This is an
application for judicial review of a decision of September 16, 2009, by the
Copyright Board wherein it answered the following question in the negative:
Is anyone entitled to equitable
remuneration pursuant to section 19 of the Copyright Act, R.C.S. 1985,
c. C-42 [the Act] when a published sound recording is part of the soundtrack
that accompanies a motion picture that is performed in public or a television
program that is communicated to the public by telecommunication?
[2]
The question
arose after the applicant, Re:Sound, filed two proposed tariffs for the
performance in public and communication to the public by telecommunication of
published sound recordings. Both tariffs were objected to: (1) tariff 7, which
targets the use of sound recordings embodied in a motion picture performed by a
motion picture theatre; and (2) tariff 9, which targets the use of sound
recordings in programs broadcast by television services.
[3]
The definition of
“sound recording” in section 2 of the Act was central to the Board’s decision.
|
“sound recording” means a recording, fixed in any material
form, consisting of sounds, whether or not of a performance of a work, but
excludes any soundtrack of a cinematographic work where it accompanies the
cinematographic work;
|
« enregistrement sonore » Enregistrement constitué de sons
provenant ou non de l’exécution d’une œuvre et fixés sur un support matériel
quelconque; est exclue de la présente définition la bande sonore d’une
œuvre cinématographique lorsqu’elle accompagne celle-ci.
[Emphasis added.]
|
[4]
The meaning of
this exclusion required the Board to construe the defined term "sound
recording" and the undefined term "soundtrack" as it relates to
pre-existing sound recordings.
[5]
The applicant
mainly contends that the Board erred in construing the exclusion clause as
excluding all the individual components of a soundtrack, including any embedded
pre-existing recording (applicant’s memorandum at paragraph 25). According to
the applicant, what is excluded from the definition of sound recording is the
soundtrack as a whole, not its individual elements. It alleges two
reasons in support of its position: (1) in the definition of “sound recording,”
“soundtrack” refers to the physical location of the recording, not to the
sounds themselves; (2) the portions of a soundtrack are different from the
soundtrack as a whole, and they cannot be treated the same (ibidem at
paragraphs 32 to 35). For these reasons, the applicant believes that although
no one can claim equitable remuneration for the whole soundtrack, the makers
and performers of separate sound recordings embedded in the soundtrack can.
[6]
According to the
applicant, the exclusion was intended as a limitation on the rights in
cinematographic works and not on the copyright extended to sound recordings (ibidem
at paragraph 63). In other words, the purpose of the exclusion was to prevent a
motion picture, not a sound recording, from being protected twice (ibidem
at paragraph 68).
[7]
The Board was not
convinced by the applicant’s attempt to draw a distinction between the
soundtrack and its component parts because, in its opinion, such an
interpretation would require adding to the words of the definition of the term
"sound recording" (Board’s reasons at paragraph 28).
[8]
It therefore
concluded that tariffs 7 and 9 were based on no valid legal foundation and were
incapable of being certified. As a result, the tariffs were struck from the proposed
statement of royalties that had been published in the Canada Gazette
(reasons at paragraph 44).
[9]
There was a debate
as to the applicable standard of review. There is no need to dwell on this
issue as, in my view, the Board came to the correct conclusion essentially for
the reasons that it gave. This being said, I wish to briefly comment on three
particular issues.
[10]
First, the
applicant raised before us various preoccupations concerning the impact of the
Board’s decision on the rights of performers and makers of sound recordings,
notably that a sound recording incorporated within a soundtrack a) could be
published on the internet or otherwise disseminated or b) could be extracted
from a DVD and thereafter published, without any recourse or remedy open to the
performer or maker in either case. As noted by the respondents, these
preoccupations are ill founded.
[11]
Indeed, under
subsection 17(1) of the Act, a performer must authorize the embodiment of his
or her performance in a cinematographic work. Consequently, an unauthorized
embodiment of a performance in a cinematographic work contravenes the Act.
Moreover, once a prior sound recording is extracted from the soundtrack that
accompanied the cinematographic work, it again attracts the protections offered
performers and makers under the Act for stand-alone sound recordings.
[12]
The applicant
also raised a comparative law argument. It relied on Australian jurisprudence,
which I find of no assistance, as it is based on legislation that is
fundamentally different in regard to sound recordings and soundtracks. The same
can be said of the UK law on which the applicant also relied.
[13]
The applicant
also raised an argument based on the incompatibility with Article 10 of the Rome
Convention which provides that the producers of phonograms enjoy the right
to authorize or prohibit the direct or indirect reproduction of their
phonograms. This argument fails to consider that the Rome Convention
defines “phonograms” as any exclusively aural fixation of sounds (Article 3,
paragraph (b)), and that consequently a “fixation of images (e.g., cinema) or
of images and sounds (e.g., television) are therefore excluded” (WIPO Guide to
the Rome Convention section 3.7). Therefore, I find no reason to interfere with
the Board’s conclusion.
[14]
Finally, the
applicant argued that regardless of the Board’s construction of the
definitions, it is entitled to a tariff for live-to-air broadcasts because
these types of broadcasts are not “communications to the public of
cinematographic work", as defined in section 2 of the Act. The applicant
states that such broadcasts are not expressed by any process analogous to
cinematography, hence not subject to the section 19 exclusion (applicant’s
memorandum at paragraph 88). The applicant asks that its application for
judicial review be allowed on this point and that the matter be sent back to
the Board so that it may pronounce itself on the issue.
[15]
In my view, the
judicial review application cannot be allowed on this limited ground. This
argument was not raised in the applicant’s notice of application and was not
brought to the attention of the Board. As such, the Board cannot be faulted in
any way for not having dealt with this issue. There are therefore no grounds
for reviewing the decision of the Board on this basis.
[16]
As
a result, I would dismiss this application for judicial review with costs.
“Johanne
Trudel”
“I
agree
Marc Noël J.A.”
“I
agree
Robert M. Mainville J.A.”
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