Composers, Authors and Publishers Association, Limited v. Western Fair Association, [1951] SCR 596

Supreme Court of Canada

Composers, Authors and Publishers Association, Limited v. Western Fair Association, [1951] S.C.R. 596

Date: 1951-05-23

Composers, Authors and Publishers Association of Canada, Limited (Plaintiff) Appellant;

and

Western Fair Association (Defendant) Respondent.

1951: March 14; 1951: May 23.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Copyright—Infringement—Performance of musical work at Agricultural-Industrial Fair—Admission Fee Charged—Whether “performance without motive of gain”—The Copyright Act, R.S.C. 1927, c. 32, s. 17(1) (vii).

The Copyright Act, R.S.C., 1927, c. 32 as amended by S. of C. 1938, c. 27, s. 2 provides that:—

17(1) Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright:—Provided that the following acts shall not constitute an infringement of copyright:—(vii) The performance without motive of gain of any musical work at any agricultural, agricultural-industrial exhibition or fair which received a grant from or is held under Dominion, provincial or municipal authority, by the directors thereof.

Held: In construing a Federal statute the English version is to be read with the French version; The King v. Dubois, [1935] S.C.R. 378 at 402-3; Commissioner of Patents v. Winthrop, [1948] S.C.R. 46 at 54. Section 17(1) (vii) of the Copyright Act when so construed is to be read as follows: “The performance without motive of gain of any musical work at any exhibition or fair” of the types therein described.

(Decision of the Court of Appeal, [1950] O.W.N. 126, reversed).

APPEAL from the judgment of the Court of Appeal for Ontario[1] affirming the judgment of LeBel J.[2].

H.E. Manning K.C. for the appellant.

M.J. Grant K.C. and J.W. Cram for the respondent.

The judgment of the Chief Justice, Taschereau and Kerwin JJ. was delivered by:

KERWIN J.:—This is an action for alleged infringement of copyright. The plaintiff appellant is the owner of the performing right in Canada of the musical works “Begin the Beguine” and “Tea for Two”. That right falls within s. 3(1) of the Copyright Act, R.S.C. 1927, c. 32:—

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For the purposes of this Act, “copyright” means the sole right * * * to perform * * * the work or any substantial part thereof in public; * * * and to authorize any such acts as aforesaid.

By s. 17 of the Act as amended by s. 2 of c. 27 of the 1938 statutes:

17. Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright:

Provided that the following acts shall not constitute an infringement of copyright:—

* * *

(vii). The performance without motive of gain of any musical work at any agricultural, agricultural-industrial exhibition or fair which received a grant from or is held under Dominion, provincial or municipal authority, by the directors thereof.

Subsection 1 of s. 20 enacts:

Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts, and otherwise, as are or may be conferred by law for the infringement of a right.

Pursuant to its Act of incorporation, the respondent defendant corporation conducted, on lands in the City of London and in buildings erected thereon, an exhibition known as the “Western Fair”. The action went to trial on an agreed statement of facts, from which it appears that the respondent alleges, and the appellant denies, that the “Western Fair” so conducted was an agricultural, agricultural-industrial exhibition or fair within the meaning of s. 17(1) (vii) set out above. The trial judge decided that the Western Fair as conducted in 1948 was an agricultural-industrial exhibition or fair within the meaning of this enactment, and the Court of Appeal affirmed that finding. Counsel for the appellant did not challenge that finding before this Court.

It was in the year 1948 that the alleged infringement occurred when special entertainment for those attending the fair was provided in two shows daily (afternoon and evening) before a grand-stand in a special enclosure to which admission fees were charged. This entertainment consisted of horse races and exhibition and judging of harness horses during the afternoon performances only; and for both performances, vaudeville and acrobatic acts, during the course of one of which a musical troop played

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“Begin the Beguine”. These vaudeville and acrobatic acts were produced and directed by an American booking agency under a contract with the respondent. Band music was continuously played during the course of the vaudeville and acrobatic acts; such band music being provided by the London Technical Band under a contract with the respondent. During the course of each performance before the grand-stand such band played “Begin the Beguine”. The respondent engaged, under contract, The White Rose Petrolia Concert Band to play music for the general entertainment of the public from a band-stand located upon the fair grounds and on one of the evenings during the exhibition such band performed “Tea for Two”.

The first sentence in paragraph 15 of the agreed statement of facts makes it clear that these performances were authorized by the respondent. The second sentence in that paragraph is relied upon by the respondent as indicating that the parties agreed that within the meaning of s. 17(1) (vii) the performances were “without motive of gain”. Paragraph 15 reads as follows:

15. The Defendant employed the said performers and bands mentioned in the preceding paragraphs 12, 13 and 14 foregoing for the purposes of performing the musical works therein mentioned and authorized and instructed them to perform the same as stated therein. The motive of the Directors of the Defendant in causing the Defendant to employ the said performers and bands and in having them play the said musical works was to provide entertainment for and to please those attending The Western Fair and to make the Western Fair one which would be largely attended by the public.

It is impossible to read the last part of this paragraph as disposing of the main contention between the parties.

The proper construction of s. 17(1) (vii) requires that attention first be directed to the concluding words “by the directors thereof”. In this connection the enactment (1938, c. 27, s. 2) appears in the French version as follows:

(vii) L’exécution, sans intention de gain, d’une œuvre musicale à une exposition agricole, ou à une exposition industrielle et agricole, ou à une foire, qui reçoit une subvention d’une autorité fédérale, provinciale ou municipale, ou qui est tenue par ses administrateurs en vertu d’une telle autorité.

It is clear, as was held by this Court in The King v. Dubois[3], that a statute in the English version must be read with the statute in the French version. So read, the

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former means that the words “by the directors thereof” refer to an exhibition or fair which is held under Dominion, provincial or municipal authority.

Before proceeding further to construe s. 17(1) (vii), it should be noticed that the first reference to an exhibition or fair appeared by an amendment to the Copyright Act in c. 8 of the Statutes of 1931. Prior thereto the provisos as to certain acts not constituting an infringement of copyright were contained in paragraphs (i) to (vi). In that year numbers (vii) and (viii) were added in the following terms:

(vii) The performance of any musical work by any church, college or school, or by any religious, charitable or fraternal organization, provided such performance is given without private profit for religious, educational or charitable purposes. (viii) The performance without private profit of any musical work at any agricultural exhibition or fair which is held under Dominion, Provincial or Municipal authority.

In this state of the law, Chief Justice Rose decided in Canadian Performing Rights Society Ltd. v. Canadian National Exhibition Association[4], that the exhibition or fair of the defendant could not be described as an “agricultural exhibition or fair” but would probably be an “agricultural-industrial exhibition”. He held also that, even if it were the former, the performance was not one without private profit to the band that performed a certain musical work, and that, even if the words “the performance without private profit” meant without such profit to the holders of the exhibition or fair, the defendant acted for its private profit even if there were no net profits from the performances in the grand-stand enclosure during the year in which the infringement occurred.

By c. 28 of the 1936 statutes, the provisions above set out were repealed and the following substituted therefor:

(vii) The performance of any musical work by any church, college or school, or by any religious, charitable or fraternal organization, provided such performance is given without private profit for religious, educational or charitable purposes; provided, further, that such performance shall be deemed to be given without private profit if the only fees which are paid are paid to individual performers and that no fees or commissions are paid to any promoter, producer or contractor for services in promoting or producing the performance.

(viii) The performance without private profit of any musical work at any agricultural, agricultural-industrial exhibition, or fair, which

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receives a grant from or is held under dominion, provincial or municipal authority, provided that such performance shall be deemed to be given without private profit if the only fees which are paid, are paid to the individual performers or their agents, and provided, further, that such fees are not dependent upon the attendance at the exhibition or fair.

Under this wording, Green J. decided in Canadian Performing Rights Society Ltd. v. Canadian National Exhibition Association[5], that although certain performances complained of were given at the agricultural-industrial exhibition held by the defendant, yet they were not without private profit since fees were paid in connection with the entertainment at which the musical works were performed to persons (such as ticket sellers) other than the individual performers or their agents.

Then came the 1938 amendment with which we are concerned and under which J.G. Kelly J. in Canadian Performing Rights Society Ltd. v. Lombardo[6], held that the motive of the Canadian National Exhibition Association in holding the exhibition at which the defendant performed certain musical works was to please the guests and not to make pecuniary gain although gain might result. The Court of Appeal allowed the appeal from this decision on the ground that in order to secure the benefit of exception (vii) as enacted in 1938, it was essential that the defendant should shelter himself under the aegis of the directors of the association because, in the view of the Court of Appeal, it was a performance by the directors immediate or mediate that conferred immunity under the statute. It was held that an onus rested upon the defendant of establishing that the directors exercised control over the performances complained of, which he had failed to satisfy.

Flowing logically from this decision, Mr. Justice LeBel in the present case, and the Court of Appeal, held that the performances in question were by the directors. It was also held that the performances were without motive of gain on their part. With respect I am unable to agree. For reasons already given, the words “by the directors thereof” do not qualify “performance” or “performance without motive of gain”. “Motive of gain” is a much wider expression than that used in 1931 “without private profit” and it cannot be restricted to circumstances where the motive

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of gain is the main or the only motive. Even considering the word “gain” as indicating financial advantage, the agreed statement of facts makes it clear that the respondent intended, or had as one object, that financial profit should accrue. Furthermore, as to the proviso in its present form, I agree with Chief Justice Rose when he stated that the proviso considered by him must be construed in the same way whether the action for infringement is taken against the actual performer or against one who has authorized the act.

Commencing with the basic proposition that the appellant is entitled to copyright in the musical works mentioned unless the respondent is able, on a fair reading of the exceptions in s. 17, to bring itself within one of them, and bearing in mind the history of the enactment, and particularly the fact that in 1936 special provision was made with respect to fees paid to the individual performers or their agents, I conclude that the respondent has not succeeded in bringing itself within exception (vii) and that the appeal should be allowed. The appellant is entitled to a declaration that the respondent has infringed the appellant’s copyright in the musical works referred to by the performances thereof in public without the consent of the appellant, and that it is entitled to damages and its costs of the action and of the appeals. As this is a test action, the damages should be fixed at the nominal sum of $5. The costs in the Courts below should be taxed on the scale of the Supreme Court of Ontario.

The judgment of the Chief Justice, Rand, Kellock, Locke, Cartwright and Fauteux JJ. was delivered by:

KELLOCK J.—This appeal involves the interpretation of s. 17 subsection 1 (vii) of the Copyright Act, R.S.C. 1927, c. 32, as amended. In considering this paragraph it is helpful to refer to the history of the legislation:

In 1931, by 21-22 Geo. V, c. 8, s. 6, the following clauses were added to s. 17:

(vii) The performance of any musical work by any church, college or school, or by any religious, charitable or fraternal organization; provided such performance is given without private profit for religious, educational or charitable purposes.

(viii) The performance without private profit of any musical work at any agricultural exhibition or fair which is held under Dominion. Provincial or Municipal authority.

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Following this enactment, the case Canadian Performing Right Society Limited v. Canadian National Exhibition Association[7], came before the late Chief Justice of the High Court. There, the plaintiff complained of the playing of a composition in which it held the copyright, by a paid band at a performance in front of the grandstand at the defendant exhibition. For entrance to the grandstand the defendants made an admission charge in addition to the charge for entry to the exhibition grounds. The entertainment before the grandstand cost the defendants something more than the money taken in at the entrance to the stand. The entertainment itself was furnished because it was supposed to serve as a drawing-card to bring to the exhibition many persons who would not otherwise come. The learned trial judge, Rose C.J.H.C., held that the defendant was not an “agricultural exhibition or fair” within the meaning of the statute and further, that the performance was not “without private profit” as, from the standpoint of the performers, they were paid, and from the standpoint of the defendant itself, it desired to make the performance as nearly as possible self-supporting, and directly profitable if possible. In his view, the fact that there were no actual profits, was immaterial.

In 1936, by 1 Ed. VIII, c. 28, s. 6 of the Act of 1931 was repealed and the following paragraphs substituted for the former paragraphs (vii) and (viii):

(vii) The performance of any musical work by any church, college or school, or by any religious, charitable or fraternal organization, provided such performance is given without private profit for religious, educational or charitable purposes; provided, further, that such performance shall be deemed to be given without private profit if the only fees which are paid are paid to individual performers, and that no fees or commissions are paid to any promoter, producer or contractor for services in promoting or producing the performance.

(viii) The performance without private profit of any musical work at any agricultural, agricultural-industrial exhibition or fair, which receives a grant from or is held under dominion, provincial or municipal authority, provided that such performance shall be deemed to be given without private profit if the only fees which are paid, are paid to the individual performers or their agents, and provided, further, that such fees are not dependent upon the attendance at the exhibition or fair.

I think it is reasonable to conclude that these amendments were made as a result of the decision of 1934. Paragraph (viii) was extended to include agricultural-industrial

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exhibitions or fairs, evidently to take in such an exhibition as that of the defendant in the 1934 litigation, and the restriction enacted with respect to the meaning of “without private profit” in both paragraphs was apparently intended to render inapplicable the view expressed by Rose C.J.H.C. as to the earlier statute.

Following this legislation, the case, Canadian Performing Right Society Limited v. Canadian National Exhibition Association[8], came before the late Mr. Justice Greene. The alleged infringement of copyright in that case consisted again in the performance of copyright music by a paid band as part of the grandstand performance under the same circumstances as the performance in question in the action before Rose C.J.H.C.

Greene J. held that the addition of the word “agricultural-industrial” in paragraph (viii) rendered the former judgment inapplicable to the defendant, and brought it within the protection of the paragraph subject to the question as to the meaning of the words “without private profit.” As to this the learned judge held that there was private profit by reason of the fact that there were

fees paid to various people in connection with the entertainment in front of the grandstand, such as ticket sellers, ticket takers, ushers, and probably, various other attendants.

This decision was not appealed, but shortly after the delivery of the judgment, Parliament, by 2 Geo. VI, c. 27, s. 2 subsection 2, repealed the former paragraphs (vii) and (viii) and enacted other provisions. For paragraph (viii) was substituted the present paragraph (vii). For the former paragraph (vii), s. 5 of the statute substituted a proviso at the end of subsection 1 of s. 17, as follows:

Further provided that no church, college or school, and no religious, charitable or fraternal organization shall be liable to pay any compensation to the owner of any musical work or to any person claiming through him by reason of the public performance of any musical work in furtherance of a religious, educational or charitable object.

It will be seen that the change in this paragraph followed a somewhat different course from that adopted with respect to the paragraph here directly in question.

Following upon this amendment, the case, Canadian Performing Right Society Limited v. Lombardo[9], was decided. The defendant was an orchestra leader employed

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by the Canadian National Exhibition Association to play music for dancing at a dance pavilion on the grounds of the association in connection with its annual exhibition for the year 1938. A fee for entry to the pavilion was charged in addition to the entrance fee for admission to the grounds. The association paid a flat fee to the defendant for the services of himself and his orchestra, and it was in connection with certain musical numbers played by the defendant that the action was brought.

It was argued for the plaintiff that the “motive of gain” referred to in the paragraph was the motive of the actual performers and that, as the defendant, who was a professional musician, was paid for the performance, he was clearly within the section. The learned trial judge rejected this contention and construed the paragraph as though it read

The performance of any musical work at any exhibition or fair (of the sort described) where such performance is authorized by the directors of such exhibition, and where the directors in authorizing the performance, have not been induced by any motive of pecuniary gain to such exhibition or fair.

The learned judge further held that the word “gain” in the paragraph meant pecuniary gain. Under the legislation under which the association was brought into existence, it could not make profits in the ordinary sense, as it was required to hand over to the City of Toronto all surplus of receipts over disbursements except for the sum of $15,000.

Evidence was given to the effect that the directors never considered the question of pecuniary profit with regard to any individual attraction held during the exhibition; that no books of account were kept which would show whether there was a profit made on the defendant’s engagement; and that the price charged for entry to the dance pavilion was nominal and was fixed with the object of controlling the attendance rather than with a view to profit.

The learned trial judge held that the motive of the directors was to please their guests and not to make pecuniary gain, although gain might result.

An appeal to the Court of Appeal was allowed. Masten J.A., who gave the leading judgment, construed the legislation as though the words “by the directors” modified

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the word “performance.” He held that it was for the defendant, in connection with what he had done, to establish that the directors had exercised control over the performance of the musical numbers in question, and that he failed so to do.

This decision throughout is predicated on the express view that the “performance” with which the paragraph deals is a “performance by the directors” of the exhibition or fair. However, when one consults the corresponding text in French of the paragraph under consideration (The King v. Dubois[10] at 402-3; Commissioner of Patents v. Winthrop[11] at 54) it is plain that the interpretation placed upon the section in the case cannot stand. The French text reads as follows:

(vii) L’exécution sans intention de gain, d’une œuvre musicale à une exposition agricole, ou à une exposition industrielle et agricole, ou à une foire, qui reçoit une subvention d’une autorité fédérale, provinciale ou municipale, ou qui est tenue par ses administrateurs en vertu d’une telle autorité.

Accordingly, it would appear that the section is to be read as follows:

The performance without motive of gain of any musical work at any exhibition or fair.

of the types described in the paragraph. In my opinion, if this be so, the effect is to render applicable the decision of Rose C.J.H.C. in 1934, although the words which the learned Chief Justice had to construe in that case were “without private profit” instead of the words “without motive of gain.” I think the following passage from his judgment in 1934 O.R. at p. 621, paraphrased as follows, is applicable and I would so apply it.

Whether it was or was not a performance without motive of gain on the part of the defendants, it was not a performance without motive of gain to the band concerned, whether the performance was before the grandstand to which a separate entry fee was charged or whether it was in the bandstand within the exhibition grounds outside the grandstand; and I cannot find any justification for reading the paragraph as meaning that so long as the performance is without motive of gain to the persons holding the exhibition, it is protected even if the actual performer is deriving

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private profit. The objection to such a construction is perhaps more clearly evident when the action is brought against the person who was paid for his performance than when it is brought against the persons who held the exhibition. It seems to me to be equally clear that in order to make the subsection protect the person who performs the work for his own private profit, that is, with a motive of gain, words must be interpolated and the paragraph must be read as a proviso excluding from the general law as established by the Act the performance (to which the Act but for the proviso would extend) of a musical work at an exhibition or fair (of the kind described in the proviso) so long as such performance is without motive of gain to the persons holding the exhibition or fair. I think that the subsection could not in an action brought against the paid performer be read in the way suggested; and if I am right as to that, I do not see how it is possible so to read it in an action brought against other persons. The reading of the section, I think, must be the same no matter who may be the defendant in the action in which the benefit of the proviso is invoked.

In the courts below in the case at bar, the judgments are founded on the view as to construction of the legislation taken in Lombardo’s case, and the judgment in appeal, therefore, cannot stand. It should be mentioned that any question as to the exhibition or fair of the defendant not being one within the class described was abandoned before us by counsel for the appellant.

While it is evident that Parliament has intended to give some measure of freedom from liability to pay royalties in connection with the use of copyright material at these exhibitions, it is equally plain, from the presence in paragraph (vii) of qualifying language, that complete immunity was not intended. The difficulty arises from the failure on the part of Parliament to define without ambiguity the measure of immunity intended in paragraph (vii).

As the matters mentioned above are sufficient to dispose of this appeal, it is unnecessary to pass upon Mr. Manning’s argument, founded on Performing Right Society v.

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Bradford Corporation[12], Performing Right Society v. Bray Urban Council[13], and Sarpy v. Holland[14], namely that it being admitted that one of the motives of the directors in causing the works in question to be played was to make the Western Fair one which would be largely attended, and that admission fees were charged for entrance to the fair grounds and to the grandstand, these facts were sufficient of themselves to destroy the conditional immunity created by s. 17(1) (vii).

I would therefore allow the appeal with costs throughout. For the reasons given by Rose C.J.H.C. in the case already referred to, I think the only relief should be nominal damages of $5. The costs below should be taxed on the scale of the Supreme Court of Ontario.

ESTEY J.:—I agree, for the reasons expressed by my brothers Kerwin and Kellock, that this appeal should be allowed with nominal damages in the sum of $5 payable to the plaintiff. The plaintiff should have its costs throughout.

Appeal allowed.

Solicitors for the appellant: Manning, Mortimer and Kennedy.

Solicitors for the respondent: Dyer, Grant and Mitchell.