Supreme Court justices question SOCAN on song previews, communication right

OTTAWA—Lawyers for a copyright collective seeking to apply “communication rights” royalties to Internet downloads received a series of tough questions from a full panel of Supreme Court justices Tuesday. The Supreme Court on Tuesday opened two days of hearings on an unprecedented collection of five copyright law cases. In two related cases, Entertainment Software Association v. SOCAN (case No. 33921) and Rogers Communications et al. v. SOCAN (33922), the court is looking at whether the purchase and transmission of a work online, such as a song or a video game embedded with music, constitutes a communication of that work to the public under the Copyright Act. The Federal Court of Appeal has determined that a download is a communication to the public, approving copyright collective the Society of Composers, Authors and Music Publishers of Canada (SOCAN) to apply to collect communication rights tariffs from online music distributors. A collection of Internet service providers (ISPs) are now appealing the issue to the Supreme Court. “The right to communicate is a separate right from the right to perform, and it’s a separate right from the right to reproduce,” Lynne Watt, counsel acting for SOCAN, told the court. “Communication is a third right.” During a separate presentation from Gilles Daigle, also counsel for SOCAN, Justice Michael Moldaver noted that consumers who buy a video game or CD from a store don’t have to pay a communication right tariff. “No one says that the moment you buy it, there’s a communication tax because somehow this information has been conveyed to you,” Justice Moldaver, one of nine justices on the bench Tuesday, said. “What you’re talking about is a tax on technology.” Daigle said SOCAN doesn’t seek royalties for the communication right in store purchases because the right is not “engaged.” Through amendments in 1988, Parliament specifically created the communication right in section 3(1) of the Copyright Act to deal with advances in technology and address the transmission of works on telecommunication networks, he said. Section 3(1) of the Copyright Act says copyright includes the “sole right” to reproduce, publish and perform works in public. Section 3(1)(f) adds that it includes the right to “to communicate the work to the public by telecommunication.” “This issue of double compensation or layering of rights is a non-issue because the layering of rights is a result of the rights that have been afforded by Parliament and set out in Section 3(1),” he said. Parliament sought to make the provision broad enough to avoid the debate now happening now in court, Daigle said. Legislators intended to make a distinction between works sold in stores and works sold by telecommunication, and made section 3(1)(f) “as broad as possible,” he said. Justice Moldaver questioned why Parliament would want to impede Internet communications. “Why would Parliament take a position that the Internet should be treated differently than if I have a taxi and go and pick it up from a store and bring it to my house?” he said. “Why would Parliament want to, in effect, put a damper on the most effective means of communication known in the history of mankind?” Barry Sookman, counsel acting for the Entertainment Software Association (ESA), said the dispute over the communication right arises because authors and composers in the music business assign different rights to different copyright collectives. “The only reason it comes up here is because you have single members who divide up their rights, and they're trying to collect with the left hand and the right hand,” he said. None of the parties presenting before the court Tuesday raised the Conservative government's omnibus copyright reform legislation, Bill C-11. The bill, which is identical to its failed predecessor Bill C-32, proposes a new online “making available right” for rights holders, which if passed could quash the ISPs' and ESA's appeals of the case to the Supreme Court. The Supreme Court also heard arguments Tuesday for SOCAN v. Bell Canada, et al. (case No. 33800), which is considering whether online music vendors can freely provide 30-second song previews online under the Copyright Act's fair dealing exceptions for research. Daigle told the court song previews go too far to be considered “fair” under the exception. He said the previews are akin to giving away free samples of ice cream to help customers determine what kind of ice cream cone they want, and that, he said, is not research. “Have you conducted research? You’ve shopped. You’ve bought ice cream,” Daigle said. He said research involves a “systemic” endeavour to find information, which is different than shopping. But the court justices had several questions about his definition. During Daigle's presentation, Justice Morris Fish looked up a definition of “research” online in the Oxford English Dictionary. “It says there are 253 definitions of research, the first of which is, 'The act of searching carefully for or pursuing a specified thing or person,'” Justice Fish said. “Why does a preview not fit into that definition?” Justice Marshall Rothstein said he was having difficulty drawing a line between conducting research by reading a consumer report, listening to a song preview, or test driving a car. Lawyers for SOCAN also faced several questions about whether song previews increase music sales and benefit copyright owners. Song previews do not cost SOCAN anything, Justice Fish said, with the costs incurred by music distributors. SOCAN conceded that everyone benefits from increased sales, but argued that the question is whether rights holders are entitled to choose and exercise their rights. Lawyers said for every 10 previews one sale is made. Glen Bloom, a lawyer acting for the Canadian Recording Industry Association, which is supporting SOCAN in the case, said defining song previews as fair dealing research could legalize the free download of entire songs for research purposes. “Researchers” could argue that they are downloading music to understand political messages in the songs or lyrics, he said. The court said Tuesday it is reserving judgment in all three of the cases heard. Hearings are scheduled to resume Wednesday morning for two more cases. In Alberta v. Access Copyright (case No. 33888), the court is considering whether photocopying from textbooks for students from kindergarten to Grade 12 falls under the fair dealing exceptions; and in Re:Sound v. Motion Picture Theatre Associations of Canada (34210), the court will look at whether rights holders should be compensated when their music is played in movies and on television. sdoyle@thewirereport.ca

Supreme Court justices question SOCAN on song previews, communication right

Broadcast | December 7, 2011

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