Date: 20100902
Dockets: A-519-07
A-520-07
Citation: 2010 FCA
220
Docket:
A-519-07
BETWEEN:
SHAW CABLESYSTEMS
G.P.
Applicant
and
SOCIETY OF
COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS
OF CANADA
Respondent
and
CMRRA-SODRAC INC.
Intervener
A-520-07
BETWEEN:
BELL CANADA,
ROGERS COMMUNICATIONS INC.,
PURETRACKS INC., AND
TELUS COMMUNICATIONS COMPANY
Applicants
and
SOCIETY OF
COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS
OF CANADA
Respondent
and
CMRRA-SODRAC INC.
Intervener
REASONS
FOR JUDGMENT
PELLETIER
J.A.
INTRODUCTION
[1]
These applications are among a number of applications
for judicial review arising out of the Copyright Board’s (the Board) decisions
relating to the Society of Composers, Authors and Music Publishers of Canada’s
(SOCAN) application for a tariff with respect to, broadly speaking, the
performance and communication of musical works on, or by means of, the
Internet. The issue in this application is, simply put, whether the
transmission of a musical work to an individual by an on-line music service is
a communication of that work to the public by telecommunications within the
meaning of paragraph 3(1)(f) of the Copyright Act, R.S.C. 1985,
c. C-42 (the Act). The Board found that they were, a reasonable conclusion, in
my view, and as a result, I would dismiss each application for judicial review.
[2]
Substantially the same arguments as to whether downloads or streams were
communications to the public were made in each of these applications. These
reasons will apply to each application and a copy will be placed on each file.
THE FACTS
[3]
The applicants, Shaw Cablesystems G.P., Bell
Canada, Rogers Communications Inc. and TELUS Communications Company are all
Internet service providers, that is, they provide consumers with a means of
becoming part of the network of networks which is the Internet. Persons who
have an Internet account with the applicants are able to access online music
services’ web sites from which they can download music files (or streams) to
their computers. The applicant Puretracks Inc. is a musical download service.
[4]
The respondent SOCAN is a collective society
which administers in Canada
performing rights and right to communicate musical works to the public by
telecommunication. The intervener, (CMRRA-SODRAC INC.) is a collective society which
administers the right to reproduce protected musical works in Canada. For all intents and purposes, the intervener
supports the position taken by SOCAN. As a result, references to SOCAN should
be taken as a reference to the respondents and the intervener.
[5]
The basic facts which underlie the legal issue
raised by this case are not in dispute. It is common ground that online music
services operate web sites on servers which are accessible from the Internet from
which consumers can download music files or streams from those sites to their own
computers or mobile devices. A download is transmission of a file which is
reconstituted on the hard drive of the recipient computer and which may then be
played, while a stream is a download which is meant to be played as it is
received and then erased from the computer’s hard drive. The Supreme Court has
held that such a file is communicated when it is recreated on the recipient
computer and that such a communication is a communication by telecommunication:
see Society of Authors, Composers and Music Publishers v. Canadian
Association of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427, (SOCAN
v. CAIP) at paragraphs 42 and 45. The only question is whether such a
communication is a communication of the work to the public by
telecommunication.
THE DECISION
UNDER REVIEW
[6]
The decision under review was issued October 18,
2007 under the title of Reasons for the decision certifying SOCAN Tariff 22.A
(Internet-Online Music Services) for the years 1996 to 2006. I shall refer to it
as the Tariff 22.A Decision.
[7]
The Tariff 22.A Decision was the second part of
a two stage process arising out of SOCAN’s request for the certification of a
tariff for the communication of musical works over the Internet. The Board
decided to issue a first decision which was limited to certain legal and
jurisdictional issues which it was called upon to decide in dealing with
SOCAN’s application. That first decision was issued on October 27, 1999 (the
Tariff 22 Decision). In that decision, the Board dealt at length with questions
such as whether downloading a file from the Internet was a communication,
whether such communications were communications by telecommunication and
whether those communications were communications to the public.
[8]
While the Tariff 22 Decision was challenged in
this Court (Society of Composers, Authors and Music Publishers of Canada v.
Canadian Association of Internet Providers, (SOCAN v. CAIP), 2002
FCA 166, [2002] 4 F.C. 3 and in the Supreme Court, 2004 SCC 45, [2004] 2 S.C.R.
427, the issues raised by this application were not considered in those
proceedings even though many of the applicants in the present application, or
their proxies, were parties to the challenge to the Tariff 22 Decision.
[9]
In its Tariff 22.A Decision, the Board returned
to some of the issues considered in the Tariff 22 Decision when it identified
the following question as the first issue which it must decide:
Is the transmission of a download a communication to
the public by telecommunication within meaning of paragraph 3(1)(f) of
the [Copyright] Act.?
Tariff 22.A Decision, page
25.
In disposing of
this question, the Board articulated a number of propositions found in the
jurisprudence. First, it said, the transmission of a download over the Internet
communicates the content of download, and the content is communicated even if
it is not used or heard at the time of the transmission: see Tariff 22.A
Decision at paragraph 94.
[10]
The Board went on to declare that there was no
valid distinction, for purposes of this question, between downloads and streams.
It follows, then, that the download of a stream is also
a communication of the content of the stream: see Tariff 22.A Decision at
paragraph 96.
[11]
Second, the Board held that the transmission of
a download to a member of the public is a communication to the public. The
Board’s conclusion is stated as follows: “One or more transmissions of the same
work, over the Internet, by fax or otherwise, to one or more members of the
public each constitutes a communication to the public”: see Tariff 22.A
Decision at paragraph 97. The Board noted that downloads are “targeted at an
aggregation of individuals”, a phrase drawn from this Court’s decision in CCH
Canadian v. Law Society of Upper Canada, 2002 FCA 187, [2004] 4 F.C. 213, (CCH
(FCA)) at paragraph 100. The Board then referred to comments made by this
Court and by the Supreme Court 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”: see
CCH Canadian Ltd v. Law Society of Upper Canada, 2004 SCC 13,
[2004] 1 S.C.R. 339 (CCH(SCC)) at paragraph 78 and, to the same effect, CCH(FCA)
at paragraph 101. The Board relied on these comments to conclude that a download
of a file from an online music service was a communication of that file to the
public: see Tariff 22.A Decision at paragraph 97.
[12]
The Board rejected the argument that a
communication to the public required an element of simultaneity, that is, the
recipients of the communication must receive it at the same time. The Board held
that the requirement of simultaneity was inconsistent with the Supreme Court’s
position that a series of transmissions of a work to multiple recipients might
constitute a communication to the public.
[13]
Third, the Board refused to credit the
argument that Internet transmissions are just another form of delivery on the
basis that “paragraph 3(1)(f) of the Act targets communications by
telecommunication”: see Tariff 22.A Decision at paragraph 99. Thus the
“delivery” of a musical work by telecommunication differs from the sale of a CD
of the same work because the Act treats the two transactions differently.
[14]
Finally, the Board rejected the argument that
imposing a tariff on the communication of a work to the public by
telecommunication amounted to double compensation. The rights of reproduction,
performance and communication by telecommunication are distinct rights and
subject to separate regimes.
[15]
In summary, the Board found that downloads of
music files from an internet server to an individual computer amounted to the
communication of that file to the public by telecommunication and thus were the
proper subject for a tariff setting out the royalties payable for such
communications.
THE POSITIONS
OF THE PARTIES
[16]
The applicants’ position, briefly stated, is
that each download of a music file is a private communication between the
operator of the online music service and an individual consumer. They say that
such a private communication cannot become a communication to the public simply
because, in an unrelated transaction, other consumers download the same work.
[17]
Basing themselves on CCH(SCC), they
argue that this Court’s decision in Canadian Wireless Telecommunications
Association v. Society of Composers, Authors and Music Publishers of Canada,
2008 FCA 6, [2008] 3 F.C.R. 539, (CWTA or the Ringtones case) is, in
effect, wrongly decided.
[18]
The CCH case dealt with a range of issues in the law of copyright
arising out of the Law Society of Upper Canada’s operation, through its Great
Library, of a “custom photocopy service” by which legal materials were
reproduced and provided to members of the Law Society and other qualified
recipients. Some of the works reproduced were copies of judicial decisions
which had been supplemented by materials prepared by the publishers, e.g.
headnotes. In some cases, the copied materials were forwarded to the requesting
party by facsimile transmission. One of the issues in the case was whether such
transmissions amounted to a communication to the public by telecommunication,
within the meaning of paragraph 3(1)(f) of the Act which, for ease of
reference I reproduce below:
|
3.
(1) For the purposes of this Act, “copyright”, in relation to a
work, means the sole right to produce or reproduce the work or any
substantial part thereof in any material form whatever, to perform the work
or any substantial part thereof in public or, if the work is unpublished, to
publish the work or any substantial part thereof, and includes the sole right
…
(f) in the case of any
literary, dramatic, musical or artistic work, to communicate the work to the
public by telecommunication,
|
3. (1) Le droit d’auteur sur l’oeuvre comporte le droit exclusif de
produire ou reproduire la totalité ou une partie importante de l’oeuvre, sous
une forme matérielle quelconque, d’en exécuter ou d’en représenter la
totalité ou une partie importante en public et, si l’oeuvre n’est pas
publiée, d’en publier la totalité ou une partie importante; ce droit
comporte, en outre, le droit exclusif :
[…]
f) de communiquer au public, par télécommunication, une oeuvre
littéraire, dramatique, musicale ou artistique;
|
[19]
Both the Federal Court, at paragraph 167 of its reasons
reported at [2000] 2 F.C. 451, [1999] F.C.J. No. 1647) and this Court, at
paragraph 100 (Linden J.A.) and paragraph 242 (Rothstein J.A.) of its reasons,
concluded that a communication emanating from a single point and intended to be
received at a single point was not a communication to the public. The Supreme
Court, at paragraph 78 of its reasons, agreed with the conclusion that “The fax transmission of a single copy [of a work] to a single
individual is not a communication to the public.”
[20]
The applicants’ case rests entirely
upon this finding in the CCH decision. SOCAN also relies upon the CCH
case, as well as this Court’s decision CWTA, in support of its position
that downloads of a work are a communication of that work to the public.
[21]
SOCAN relies upon the caveat which the
Supreme Court added to the statement quoted above with respect to point to
point communications. To put matters in context, I reproduce the entire
paragraph with the portion upon which SOCAN relies highlighted:
78. I agree with these conclusions. The fax
transmission of a single copy to a single individual is not a communication to
the public. This said, a series of repeated fax transmissions of the same
work to numerous different recipients might constitute communication to the
public in infringement of copyright. However, there was no evidence of this
type of transmission having occurred in this case.
[22]
The passage relating to repeated fax transmissions of the same work to
numerous different individuals was given effect in the CWTA case. In
that case, the issue was whether the download of ringtones from the wireless
carrier’s server to a consumer’s telephone constituted a communication to the
public of the ringtones, and was therefore subject to a tariff. This Court
found that the transmission of the ringtones to the consumer was a
communication, and that it was a communication to the public.
[23]
Dealing with the Supreme Court’s decision in CCH(SCC), and in
particular the paragraph quoted above, this Court said, at paragraph 35 of its
reasons:
35
Based
on this reasoning, it seems to me that in determining whether paragraph 3(1)(f) applies to the transmission of a
musical work in the form of a digital audio file, it is not enough to ask
whether there is a one-to-one communication, or a one-to-one communication
requested by the recipient. The answer to either of those questions would not
necessarily be determinative because a series of transmissions of the same
musical work to numerous different recipients may be a communication to the
public if the recipients comprise the public, or a significant segment of the
public.
[24]
This Court then adopted the Board’s reasoning
in the decision under review to the effect that:
Wireless carriers are trying to sell as many copies of
every single musical ringtone as possible to maximize sales and profit. They
intend, indeed they wish for, a series of repeated transactions of the same
work to numerous recipients. This, in our opinion, amounts to a communication
to the public.
CWTA at paragraph 36.
[25]
This Court distinguished the holding in the CCH(SCC)
case with respect to one to one transmissions by saying that there was no
reason to believe that the Court had in mind a series of one to one
communications to individuals who together comprise “a group that may fairly be
described as the public, as in this case”: see CWTA at paragraph 39.
[26]
SOCAN relies upon this reasoning in supporting
the Board’s decision in the Tariff 22.A Decision.
THE STANDARD
OF REVIEW
[27]
The Board is a specialist tribunal which deals
extensively with copyright matters. The Act is its home statute. It is therefore
entitled to deference with respect to its interpretation of that Act: see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 54. The question in
issue here is one of mixed fact and law. If the Board is entitled to deference
on pure questions of laws, and it is entitled to deference with respect to
findings of fact, it must necessarily be entitled to deference on questions of
mixed fact and law involving the application of its home statute to the facts
of a case.
ANALYSIS
[28]
Two preliminary observations are in order before
beginning my analysis.
[29]
The first observation concerns a small body of
jurisprudence dealing with what is a performance in public. Certain comments
made in this jurisprudence recur in cases dealing with the nature of a
communication to the public. In my view, reliance upon that jurisprudence is
not helpful.
[30]
The jurisprudence includes cases such as Composers
Authors and Publishers Association of Canada Ltd. v. CTV Television Network Ltd,
[1968] S.C.R. 676, [1968] S.C.J. No. 47, (CAPAC); CTV Television
Network Ltd v. Canada (Copyright Board), [1993] 2 F.C. 115, [1993] F.C.J.
No.2 (F.C.A.) (CTV); Canadian Cable Television Association v. Canada
(Copyright Board), [1993] 2 F.C. 138, [1993] F.C.J. No. 3 (F.C.A.) (CCTA).
These cases were decided at a time when the definition of musical work was “any
combination of melody and harmony, or either of them, printed or reduced to
writing, or otherwise graphically produced or reproduced”. In simplistic terms,
a musical work was the sheet music in which the work was described in musical
notation. As a result, the Supreme Court decided in CAPAC that the
microwave transmission of an audible version of a musical work was not a
communication of the musical work by radio communication but rather a
performance of the work. The issue then became whether such a performance was a
performance in public. The Court found that it was not.
[31]
This line of jurisprudence was pursued in CTV
and in CCTA. In CTV, the issue was whether the communication of
programs containing musical works by CTV to its affiliates who then broadcast
them to the public amounted to a communication to the public by CTV. Since the
Act had been amended since CAPAC was decided to substitute “communicate
to the public by telecommunication” for “by radio communication”, SOCAN argued
that the CAPAC decision was no longer good law. This Court disagreed
since the definition of musical work had not changed so that the issue remained
whether the transmission was a performance in public. This Court followed the
Supreme Court’s decision in CAPAC and held that it was not.
[32]
In CCTA, the issue was whether the
transmission of non-broadcast services containing music (i.e. programming which
does not originate from regular television broadcasting stations) to cable
subscribers was a communication of the programming to the public. Following the
same reasoning as CTV, this Court held that the transmission of the
music contained in the programming was not a communication to the public of the
musical work because the definition of musical work remained unchanged. This
then left the issue of whether such transmissions amounted to a performance in
public of those works.
[33]
The difference between the CTV and CCTA
cases is that in CTV as in CAPAC the transmissions in question
were from CTV to its affiliated stations while in CCTA the transmissions
were from the cable company’s head end to the homes of its many subscribers.
This Court adopted the reasoning found in foreign jurisprudence which took “a
realistic view of the impact and effect of technological developments”. It
found that the transmission of programs directly to the homes of the cable
subscribers was consistent with the plain and usual meaning of “in public” that
is to say “openly, without concealment and to the knowledge of all”: see CCTA
at p. 153.
[34]
As noted, even though this jurisprudence deals
with the meaning of “performance in public” as opposed to “communication to the
public”, it has been invoked, by the Board and others, in cases involving the meaning
of communication to the public. Two concepts have recurred with some frequency.
The first is that of simultaneity, that is, a communication cannot be a
communication to the public unless all recipients receive it more or less at
the same time, as is the case in conventional broadcasting. This is drawn, by
analogy, from the nature of a performance in public in which all member of the
audience experience the work at the same time. The second recurring concept is
that a communication to the public must be made “openly and without concealment
and to the knowledge of all”.
[35]
The transposition of the characteristics of a performance
in public to a communication to the public is not helpful. The limited utility
of the prior jurisprudence was the subject of comment in both sets of reasons
in this Court’s decision in CCH. At paragraph 99 of his reasons, Linden
J.A. wrote:
99. Although two decisions of this Court have
interpreted the current version of paragraph 3(1)(f), the reasons in
those cases only discussed the communication right briefly, since the
definition of a "musical work" resolved the issues … Both CCTA and
CTV 1993 dealt largely with the right to perform a work in public, and
mentioned only that the phrase "to the public" is broader than
"in public" (CTV 1993 at paras. 32-33; CCTA at paras. 17-18; see also
Telstra Corporation Ltd. v. Ausralasian Performing Right Association Ltd.
(1997), 38 I.P.R. 294 (Aust. H.C.)). The Trial Judge accepted this proposition
(at paras. 165-7), however, the phrase "in public" is not at issue in
this case. The fact that a communication made "in public" is likely
also a communication made "to the public" is not determinative of the
whether the Law Society communicates to the public.
At paragraph
243, Rothstein J.A. expressed a similar opinion:
243. Earlier versions of paragraph 3(1)(f)
have been considered by Canadian courts, but these decisions are of little
assistance because of significant amendments to this provision pursuant to S.C.
1988, c.65, brought into force February 13, 1989, by SI/89-70. Prior to these
amendments, the exclusive right set out in paragraph 3(1)(f) was to
reproduce "in public" and was limited to communication by radio. The
provision now applies to communications to the public by telecommunication. The
few cases decided since 1989 only go so far as to conclude that "to the
public" is a broader concept than the previous phrase "in
public". …Thus, the jurisprudence both before and after 1989 is not
materially helpful in interpreting the current meaning of "to the
public" in paragraph 3(1)(f).
[36]
As a result, I do not believe it is necessary
to dwell on the concepts derived from this jurisprudence which continue to
appear in discussions of the nature of a communication to the public.
[37]
My second preliminary observation is that
neither the Federal Court of Appeal, nor the Supreme Court decided in CCH
that “a series of repeated fax transmissions of the same work to numerous
different recipients”, in and of itself, amounts to a communication to the
public. The Supreme Court simply left this possibility open and this Court
specifically declined to decide the question because it did not arise on the
evidence: see CCH(FCA) at paragraphs 101 and 253. It is therefore an
error to treat as settled law the proposition that a series of transmissions of
a single work to multiple recipients amounts, in and of itself, to a
communication to the public.
[38]
Before dealing with the Supreme Court’s
decision in CCH, it is perhaps useful to attempt to provide a framework
to assist in the analysis of the jurisprudence relied on by the parties.
[39]
In my view, there is authority to support the
proposition that whether or not a communication is a communication to the
public is a function of two factors: the intention of the communicator, and the
reception of the communication by at least one member of the public. If those
two conditions are met, then there has been a communication to the public.
[40]
The Board recognized the role of the
communicator’s intention in the Tariff 22 Decision when it wrote:
Consequently, a communication intended to be
received by members of the public in individual private settings is a
communication to the public.
Tariff 22 Decision at page 29 (emphasis added).
To communicate is to convey information, whether or
not this is done in a simultaneous fashion. The private or public nature of the
communication should be assessed as a function of the intended target of the
act.
Tariff 22 Decision at page 30 (emphasis added).
[41]
This has also been recognized in this Court’s
jurisprudence. At paragraph 100 of this Court’s reasons in CCH, Linden
J.A. wrote:
The Trial Judge held (at para. 167) that a single
telecommunication emanating from a single point and intended to be received at
a single point is typically not a communication to the public. I agree. In my
view, the ordinary meaning of the phrase "to the public" indicates
that a communication must be aimed or targeted toward "people in
general" or "the community" (see the New Oxford Dictionary of
English, s.v. "public" (Oxford: Clarendon Press, 1998). … Thus, 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.
[Emphasis added].
[42]
A communication is “to the public” when the
communicator intends the communication to be received by the public. The exact
number of persons who actually receive the communication is not relevant so
long as one member of the public receives it. Without at least one actual
recipient, the communicator has not communicated to the public, he has merely
had the intention of doing so. But beyond a single recipient, the number of
recipients is not relevant to determining whether the communication is made to the
public though it may be very relevant to the determination of the appropriate
royalty structure.
[43]
This leads to my next point. While the
Supreme Court held, on the facts before it in CCH, that a point to point
communication was not a communication to the public, I do not take this to foreclose
the possibility that one could communicate to the public one person at a time.
This is best understood by an analogy. The concept of selling to the public is
generally understood as meaning that the vendor will sell his product to anyone
who is interested in buying it. But each sale is a sale to an individual,
involving an individual contract of sale between the vendor and the purchaser. If
one focuses too closely on the individual sales, the notion of selling to the
public fades from view. But if one steps back, it is more apparent that the
vendor is selling to the public by selling to each of those members of the
public who wishes to purchase his product.
[44]
This analogy is also helpful in understanding
the relationship between volume of sales and the intention to sell to the
public. One would not say that a vendor was not selling to the public simply
because, despite his best efforts, only one member of the public chose to buy
his goods. To put the point a different way, volume of sales distinguishes only
between those who sell to the public, and those who sell to the public
successfully. The nature of the enterprise is the same.
[45]
In the same way, nothing precludes communications to the public by
telecommunications from occurring one transmission at a time, each transmission
being a discrete transaction which occurs within the framework of an intention to
communicate the work to the public.
[46]
The idea of communication to the public by
means of a series of private communications is not new. In the Federal Court,
Trial Division decision in CCTA [1991] F.C.J. No. 24, 34 C.P.R. (3rd)
521, Strayer J. had to deal with the argument that cable transmissions to
individual homes were not communications to the public. His initial reaction to
this argument was a follows:
It is entirely conceivable to me that one may
communicate to the public by a series of simultaneous individual communications
to numerous people in different locations. I cannot regard as being other
than members of “the public” the 6.3 million subscribers to the cable systems
of CCTA’s members (or that portion who receive non-broadcast services),
together with the families, guests, and friend of those subscribers who happen
to be within earshot of their television sets. One must take into account modern
reality.
[Emphasis added.]
[47]
CCTA was decided on other grounds but the
passage quoted above is a recognition that a series of individual
communications could nevertheless amount to a communication to the public. The
reference to “simultaneous” individual communications does not, in my view,
make simultaneity a condition of a communication to the public. In referring to
simultaneous individual communications, Strayer J. was doing nothing more than
describing the facts of his case which involve cable transmissions to
individual homes.
[48]
The same idea was expressed in Telstra
Corporation Ltd. V. Australasian Performing Right Association Ltd., (1997),
38 I.P.R. 294 (Aust. H.C.), where a majority of the Court found that:
If anything, the use of the words “to the public”
conveys a broader concept than the use of the words “in public” since it makes
clear that the place where the relevant communication occurs is irrelevant.
That is to say, there can be a communication to individual members of the
public in a private or domestic setting which is nevertheless a communication
to the public.
[49]
As a result, there is a basis in the
jurisprudence for the proposition that a private communication is not
inconsistent with an intention to communicate to the public.
[50]
With this framework in mind, I turn to the
Supreme Court’s decision in CCH.
[51]
The Supreme Court held there that, in the
context of the fax transmissions by the Great Library staff to individuals who
had requested copies of certain materials, the fax transmission of a single
copy to a single individual was not a communication to the public. In the
preceding paragraph of its reasons, the Supreme Court quoted from the reasons
of the trial judge that the fax communications ‘emanated from a single point
and were each intended to be received at a single point”: see CCH(SCC)
at paragraph 77 (emphasis added). While, as noted above, this is not
inconsistent with an intention to communicate to the public, the trial judge
did not find such an intention. This is apparent from the trial judge’s
discussion of this issue at paragraph 167 of his reasons, reproduced below:
167. Both of the foregoing authorities arise from
factual situations where the person transmitting the telecommunication could
reasonably be expected to have intended the communication to be received by
multiple persons at diverse locations. They involved telecommunications
directed to a relatively broad public, albeit not the public at large. They
could be described to be telecommunications that were from a single point,
intended as in the case for example of subscription or pay-per-view television,
to be received and capable of being received at multiple points. That is not
the situation before me. Here, the telecommunications, by facsimile, emanated
from a single point and were each intended to be received at a single point.
Indeed, as I understand the technology, each would only have been receivable at
a single point barring a malfunction or some form of unanticipated
interception. I am satisfied that the telecommunications here in question were
not telecommunications “to the public”.
[52]
The Supreme Court’s decision is consistent with the trial judge’s conclusion,
implicit if not explicit, that there was no intention to communicate the work
to the public. In the absence of such an intention, there cannot be a
communication to the public by the communicator. To that extent, I believe that
the Supreme Court’s decision is narrower than was suggested in argument.
[53]
It does not follow from this that one cannot
find an intention to communicate to the public where there is only evidence of
single transmissions. As was suggested earlier in the discussion of the analogy
of selling to the public, a focus on individual transactions tends to minimize
the vendor’s intention with respect to the public. In CCH, a focus on
communicating to the public might have produced a different result.
[54]
In fact, the Supreme Court’s caveat with
respect to multiple transmissions of a work to multiple recipients is best
understood as an indication that numerous transmissions to multiple recipients
could be evidence of an intention to communicate to the public. This does not
mean that volume alone is determinative of whether a communication is a
communication to the public, but it does suggest that volume of transmissions
can be evidence of the communicator’s intention.
[55]
That said, the argument that volume of
transmissions, in and of itself, can transform private communications into a
communication to the public is fundamentally flawed. SOCAN’s reliance upon the
Supreme Court’s caveat in CCH(SCC) and this Court’s decision in CWTA
rest on this argument.
[56]
If the private nature of a point to point
communication precludes it from being a communication to the public, it is
difficult to see how other private communications, between the original
communicator and other parties, could alter the nature of the original private
communication.
[57]
An approach based on volume of communications
alone also raises the difficult question of the determination of the point at
which private communications become a communication to the public. To use the
example of the Great Library, if the first transmission of a copy of the
Supreme Court’s decision in Dunsmuir is a private communication, at what
point would subsequent transmissions become a communication to the public? The
25th transmissions? The 50th transmission? The 200th
transmission? How is the Great Library to know, as it responds to individual
requests, when it is about to infringe the rights protected by paragraph 3(1)(f)?
Once the threshold is crossed, do the preceding communications cease to be
private communications?
[58]
At first glance, this Court’s decision in CWTA,
upon which SOCAN relies, adopts a numerical test for determining when a
communication is a communication to the public. In discussing the Supreme
Court’s decision in CCH, the Court wrote at paragraph 35:
…it is not enough to ask whether there is a one-to-one
communication, or a one-to-one communication requested by the recipient. The
answer to either of these questions would not necessarily be determinative
because a series of transmissions of the same musical work to numerous
different recipients may be a communication to the public if the recipients
comprise the public, or a significant segment of the public.
[59]
The question of whether the recipients
comprise the public or a significant segment of the public suggests that that
determination depends upon the number of persons who receive the communication,
as opposed to the intention of the communicator. As indicated above, this is
problematic. That said, the proposition quoted above is sound if it is
understood to refer to the intended recipients of the communication. There is
some reason to believe that this is what the Court had in mind when one
considers the portion of the Board’s reasons which it found persuasive:
Wireless carriers are trying to sell as many copies of
every single musical ringtone as possible to maximize sales and profit. They
intend, indeed they wish for, a series of repeated transactions of the same
work to numerous recipients. This, in our view, amounts to a communication to
the public.
CWTA at paragraph 36.
[60]
It is clear from this passage that the
Board’s focus is on the wireless carriers’ intention in making ringtones
available for download. The Board’s use of the phrase “repeated transaction of
the same work to numerous recipients” while suggestive of a quantitative test,
is not inconsistent with the view that multiple sales to multiple recipients
may be evidence of an intention to communicate the work to the public.
Intention alone, however, is not sufficient since paragraph 3(1)(f)
refers to communications and not merely an intention to communicate.
[61]
I would note, in passing, that the fact that
communications occur in a commercial context, like volume of communications, is
not determinative of the communicator’s intent. Some activities where there is
clearly an intention to communicate to the public, such as peer to peer file
sharing, are not commercial activities and yet consist in making the musical
works on one user’s hard drive available to all other users who use the same
file sharing software.
[62]
I would summarize my conclusions as follows.
The Supreme Court’s conclusion in CCH that a single transmission of a
single copy to a single individual is not a communication to the public was
made in a context where there was no evidence of an intention to communicate to
the public. As a result, it is not authority for the proposition that no “point
to point” communication can ever amount to a communication to the public. The
Supreme Court’s caveat to the effect that a series of repeated transmissions of
the same work to numerous different recipients might constitute a communication
to the public is best understood as a recognition that multiple transmissions
of the same work could constitute evidence of an intention to communicate to
the public and, if they did, such transmissions would indeed constitute a
communication to the public. This Court’s decision in CWTA is not
inconsistent with these conclusions because in that case, the Court appears to
have found that there was evidence of an intention to communicate musical works
to the public. Thus, I believe that CCH(SCC) can be reconciled with this
Court’s decision in CWTA. Finally, if there is an intention to
communicate a work to the public, every communication of the work, starting
with the first, is a communication to the public.
[63]
Returning to the decision under review, the
Board’s reasoning on the issue in this application is found at paragraph 97 of
its decision which reads as follows:
[97] Second, the transmission of a download to a
member of the public is a communication to the public. Downloads are “targeted
at an aggregation of individuals” (citation omitted). They are offered to
anyone with the appropriate device who is willing to comply with the terms
dictate by the person who supplies the downloads. One or more transmissions of
the same work, over the Internet, by fax or otherwise, to one or more members
of a public each constitute a communication to the public. Any files iTunes
offers to its clients is communicated to the public as soon as one client
“pulls the file”.
[64]
It is clear from this passage that the Board
has correctly identified intention as a critical factor by identifying the
target group for the downloads as the public, defined as “an aggregation of
individuals”. It is not necessary, in order to dispose of this application, to
define “the public” any further. It is also clear that, given the online music
service’s intended market, every transmission is a communication to the public,
beginning with the first one. As a result, the vexing problem of attempting to
define quantitatively the boundary between private communications and
communications to the public does not arise.
[65]
As a result, I am of the view that the
Board’s conclusion that a download of a musical file from an online music
service to a single user is a communication of the musical work to the public
by telecommunication is reasonable. The Board’s reasons are transparent and
intelligible and the result is one which falls within the range of possible,
acceptable outcomes, defensible in respect of the facts and the law: see Dunsmuir
at paragraph 47.
[66]
This leaves only the applicants’ argument
that the Board erred in equating the online music services’ making works
available to the public with communicating those works to the public. I agree
with SOCAN that the applicants’ argument is based upon a misinterpretation of
the Board’s reasons. The finding that a completed transmission was necessary in
order to constitute a communication to the public is a complete answer to this
argument. The Board made such a finding in paragraph 97 of its decision, quoted
above.
CONCLUSION
[67]
I would therefore dismiss the application for
judicial review with one set of costs in each file to the respondents, payable
jointly by the applicant(s) in each file. The intervener shall bear its own
costs.
“J.D. Denis Pelletier”
“I agree.
Gilles Létourneau
J.A.”
“I agree.
M. Nadon J.A.”
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