Supreme Court upholds tariffs on ‘broadcast-incidental copies’

The Supreme Court on Thursday sided with the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) in a dispute with CBC/Radio-Canada over whether the latter should pay for “broadcast-incidental copies” of musical works for television or Internet productions CBC had been arguing that the copies in question — which it had been paying $1.2 million a year for during the tariff period between 2008 and 2012, and the interim period ever since — were made to “facilitate modern digital broadcasting” and did not incrementally generate additional revenue. SODRAC, on the other hand, argued that a legal precedent for such payments had been in place for more than two decades, and CBC was a willing participant for most of that time. The Supreme Court upheld most of the judgment made by the Federal Court of Appeal in March of last year last year when it upheld a tariff certified by the Copyright Board in 2012. However, the Supreme Court on Thursday said that the amount of the tariff needs to be re-evaluated, with Judge Marshall Rothstein writing in the decision that “there is no indication that the relative value derived from the use of copyright protected works in CBC’s digital technology as compared to its prior analog technology, or the relative contributions of the CBC and SODRAC to the analog and digital technologies were considered.” The court decision issued Thursday defined a broadcast-incidental copy a reproduction "made to facilitate the broadcast of an audiovisual work or to preserve the work in the broadcaster’s archives," and that it "is created when the content of the master copy of the synchronized television program is fed into the broadcaster’s digital content management system. This creates a high-resolution copy of the work." The court agreed with the original Copyright Board decision that incidental copies used for broadcast “engages the reproduction right.” It also agreed that licences for incidental copies are not automatically part of synchronization licences because “synchronization licences do not give any indication that they included the right to make broadcast‑incidental copies.” The court's summary said the issue of “technological neutrality” is not compromised by this decision, and that applying a tariff on broadcast-incidental copies “does not impose new layers of protections and fees based solely on technological change.” Rothstein wrote that the Copyright Board had failed “to consider the principles of technological neutrality and balance in setting the valuation of this licence.” He said the board should compare values that come from the use of reproduction between the old and new technologies during its valuation process. He said that "if CBC derives greater value from the use of broadcast‑incidental copies in its digital technology than it did under its prior analog technology, this is a factor in favour of the copyright holder being entitled to greater royalties for use of its copyright protected work in CBC’s digital technology. Technological neutrality requires that the Board compare the value derived from the use of reproduction in the two technologies in its valuation analysis." In a blog post Thursday about this decision, University of Ottawa law professor Michael Geist wrote: "The broader implications for Canadian copyright will take some time to figure out, but both users and creators will find elements they like and dislike. From a user perspective, there are several important, favourable findings. First, technological neutrality is confirmed as far more than a metaphor." Music Canada CEO Graham Henderson said in a press release that the Supreme Court's decision in this case was "an affirmation for Canada's creative middle class. The creative community should have access to a fair and functioning market that rewards them based on demand for their work." Music Canada represents major recording companies' interests in Canada. — With reporting by Shruti Shekar at sshekar@thewirereport.ca and editing by Derek Abma at dabma@thewirereport.ca

Supreme Court upholds tariffs on ‘broadcast-incidental copies’

Broadcast | November 26, 2015

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us