Rogers Communications Inc., Rogers Wireless Partnership, Shaw Cablesystems G.P., BellCanada and TELUS Communications Company (appellants) v. Society of Composers, Authors

and Music Publishers of Canada (respondent) and CMRRA-SODRAC Inc., CineplexEntertainment LP, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic,

Apple Canada Inc. and Apple Inc. (interveners)(33922; 2012 SCC 35; 2012 CSC 35)

Indexed As: Rogers Communications Inc. et al. v. Society of Composers, Authors andMusic Publishers of Canada et al.

Supreme Court of CanadaMcLachlin C.J.C. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and

Karakatsanis, JJ.July 12, 2012.

Summary:The Society of Composers, Authors and Music Publishers of Canada applied for a tariff

with respect to the performance and communication of musical works on, or by means of, theInternet. The Copyright Board found that the transmission of a musical work to an individual byan online music service (downloads or streams) was a communication of that work to the publicby telecommunication within the meaning of s. 3(1)(f) of the Copyright Act and thus were theproper subject for a tariff. Online music services et al. applied for judicial review.

The Federal Court of Appeal, in a decision reported (2010), 409 N.R. 102, dismissed theapplications. The online music services appealed, the sole issue being the meaning of the phrase"to the public" in s. 3(1)(f) of the Copyright Act as it related to streaming of music by the musicservices. A stream was defined as a transmission of data that allowed the user to listen to or viewthe content transmitted at the time of the transmission, resulting only in a temporary copy of thefile on the user's hard drive.

The Supreme Court of Canada first discussed the standard of review where the court andthe Copyright Board had concurrent jurisdiction at first instance in interpreting the CopyrightAct. The court held that that concurrent jurisdiction rebutted the presumption of reasonablnessreview of the Board's decisions on questions of law under its home statute. Therefore, thestandard of correctness was the appropriate standard of review on questions of law arising onjudicial review from the Copyright Board. The court determined that the issue here was a purequestion of law. The court thereafter considered the appeal on the merits. The court dismissed theappeal with respect to music streamed from the Internet by the music services. The court allowedappeal in respect of downloads for the reasons set out by the majority in the companion caseEntertainment Software Association v. Society of Composers, Authors and Music Publishers ofCanada, 2012 SCC 34. Abella, J., concurred in the result, but opined that the majority'sconclusion about how to approach the standard of review where there was shared jurisdictionovercomplicated what should have been be a straight forward application of the reasonablenessstandard.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Copyright Board (theFederal Court of Appeal agreeing), opined that streams of musical works over theInternet came within the exclusive right of copyright holders to communicate "to thepublic" by telecommunication (Copyright Act (s. 3(1)(f)) - Accordingly Tariffs could beestablished - Music service providers appealed - The Supreme Court of Canada discussedthe standard of review given that the court and the Copyright Board had concurrentjurisdiction at first instance in interpreting the Copyright Act - That concurrentjurisdiction rebutted the presumption of reasonablness review of the Board's decisions onquestions of law under its home statute - Therefore, the standard of correctness was theappropriate standard of review on questions of law arising on judicial review from theCopyright Board, such as the interpretation issue in this case - However, the Board'sapplication of the correct legal principles to the facts of a particular matter should betreated with deference - See paragraphs 10 to 20.

Administrative Law - Topic 3202Judicial review - General - Scope or standard of review - The Supreme Court of Canada(majority) stated that it had to "... respectfully disagree with Abella J.’scharacterization ... of the holding in ATA [Alberta Teachers' Association v. Informationand Privacy Commissioner, SCC 2011] as meaning that the 'exceptions to thepresumption of home statute deference are … constitutional questions and questions oflaw of central importance to the legal system and outside the adjudicator’s specializedexpertise' ... ATA simply reinforced the direction in Dunsmuir [SCC 2008] that issues thatfall under the category of interpretation of the home statute or closely related statutesnormally attract a deferential standard of review ... My colleague’s approach would ineffect mean that the reasonableness standard applies to all interpretations of homestatutes. Yet, ATA and Dunsmuir allow for the exceptional other case to rebut thepresumption of reasonableness review for questions involving the interpretation of thehome statute" - See paragraph 16.

Administrative Law - Topic 3202Judicial review - General - Scope or standard of review - The Supreme Court of Canada,per Rothstein, J., stated that "I wish to be clear that the statutory scheme under whichboth a tribunal and a court may decide the same legal question at first instance is quiteunlike the scheme under which the vast majority of judicial reviews arises. Concurrentjurisdiction at first instance seems to appear only under intellectual property statuteswhere Parliament has preserved dual jurisdiction between the tribunals and the courts.However, I leave the determination of the appropriate standard of review of a tribunaldecision under other intellectual property statutes for a case in which it arises. Nothing inthese reasons should be taken as departing from Dunsmuir and its progeny as to thepresumptively deferential approach to the review of questions of law decided by tribunalsinvolving their home statute or statutes closely connected to their function" - Seeparagraph 19.

Administrative Law - Topic 9102Boards and tribunals - Judicial review - Scope of review - [See all Administrative Law -Topic 3202].

Administrative Law - Topic 9103Boards and tribunals - Judicial review - Scope of review - [See all Administrative Law -Topic 3202].

Administrative Law - Topic 9105Boards and tribunals - Judicial review - Question of law - [See all Administrative Law -Topic 3202].

Administrative Law - Topic 9122Boards and tribunals - Administrative appeals - Scope of appeal or standard of review -[See all Administrative Law - Topic 3202].

Copyright - Topic 2General - Copyright defined (incl. extent of copyright) - [See ninth Copyright - Topic 3].

Copyright - Topic 3General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act gavecopyright holders the sole right, "to communicate the work to the public bytelecommunication" - At issue was whether streaming of files (musical works) from theInternet triggered by individual users constituted communication “to the public” of themusical works by online music service providers - The Supreme Court of Canada statedthat "Following the online music services' business model, musical works areindiscriminately made available to anyone with Internet access to the online musicservice's website. This means that the customers requesting the streams are not membersof a narrow group, such as a family or a circle of friends. Simply, they are 'the public'. Inthese circumstances, the transmission of any file containing a musical work, starting withthe first, from the online service's website to the customer's computer, at the customer'srequest, constitutes "communicat[ing] the work to the public by telecommunication" -See paragraph 56.

Copyright Topic - Topic 3General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act providedthat copyright holders had the sole right, "to communicate the work to the public bytelecommunication" - At issue was whether streaming of files (musical works) from theInternet triggered by individual users constituted communication “to the public” of themusical works by online music service providers - The online music service providersclaimed that a point-to-point transmission was necessarily a private transaction outsidethe scope of the exclusive right to communicate to the public - The Supreme Court ofCanada held that although they occurred between the online music provider and theindividual consumer in a point-to-point fashion, the transmissions of musical works inthis case, where they constituted "communications", could be nothing other thancommunications "to the public" - The online music service providers business model waspremised on the expectation of multiple sales of any given musical work listed in theircatalogue - The necessary implication of that business model was that there would be a"series of repeated ... transmissions of the same work to numerous different recipients"

which made this case distinguishable from CCH Canadian Ltd. et al. v. Law Society ofUpper Canada (2004 SCC) - See paragraphs 1 to 57.

Copyright - Topic 3General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act providedthat copyright holders had the sole right, "to communicate the work to the public bytelecommunication" - The Supreme Court of Canada, quoted Sharlow, J.A., in CanadianWireless Telecommunications Assn. v. Society of Composers, Authors and MusicPublishers of Canada (FCA 2008) as follows: "[I]n determining whether paragraph 3(1)(f) applies to the transmission of a musical work in the form of a digital audio file, it isnot enough to ask whether there is a one-to-one communication, or a one-to-onecommunication requested by the recipient. The answer to either of those questions wouldnot necessarily be determinative because a series of transmissions of the same musicalwork to numerous different recipients may be a communication to the public if therecipients comprise the public, or a significant segment of the public" - See paragraph 52.

Copyright - Topic 3General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act providedthat copyright holders had the sole right, "to communicate the work to the public bytelecommunication" - The Supreme Court of Canada stated that "CCH (SCC) [CCHCanadian Ltd. et al. v. Law Society of Upper Canada (2004)] determined that a 'series ofrepeated ... transmissions of the same work to numerous different recipients' mayconstitute a communication 'to the public' within the meaning of s. 3(1)(f) of the Act(CCH (SCC), at para. 78). Where such a series of point-to-point communications of thesame work to an aggregation of individuals is found to exist, it matters little for thepurposes of copyright protection whether the members of the public receive thecommunication in the same or in different places, at the same or at different times or attheir own or the sender's initiative" - See paragraph 52.

Copyright - Topic 3General - Copyright Act - Interpretation - The Supreme Court of Canada explained howthe Copyright Act had changed from granting technology specific communication rightsto copyright holders to communicate their literary, dramatic, musical or artistic works by"radio-communication" ("push" technologies) to granting the technologically neutralrights to "communicate ... to the public by telecommunication" - The court stated that theAct had evolved to ensure its continued relevance in an evolving technologicalenvironment - History did not support reading into the Act restrictions which were notapparent from and were even inconsistent with the neutral language of the Act itself - Thecourt noted that it had long recognized in the context of the reproduction right that, wherepossible, the Act should be interpreted to extend to technologies that were not or couldnot have been contemplated at the time of its drafting (i.e., new technologies) - Seeparagraphs 36 to 40.

Copyright - Topic 3General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act providedthat copyright in relation to a work meant the sole right, "in the case of any literary,

dramatic, musical or artistic work, to communicate the work to the public bytelecommunication" - The Supreme Court of Canada held that s. 3(1)(f) was not limitedto traditional "push" technologies (traditional media that operated on a broadcasting or"push" model) - Rather, s. 3(1)(f) was technology neutral - See paragraphs 36 to 40.

Copyright - Topic 3General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act providedthat copyright holders had the sole right, "to communicate the work to the public bytelecommunication" - The Supreme Court of Canada noted that developments at theinternational level were consistent in encompassing on-demand communications to thepublic in copyright protection, in particular art. 11bis of the Berne Convention (of whichCanada was a party) and the WIPO Copyright Treaty (WCT) - The court noted thatCanada had signed, but not yet ratified or legislatively adopted the WCT - "Therefore, theWCT is not binding in this country. The WCT is only cited to demonstrate that the broadinterpretation of s. 3(1)(f) of the Act, recognizing that a communication 'to the public'subject to copyright protection may occur through point-to-point transmissions at theuser's request, is not out of step with Article 8 of the WCT and international thinking onthe issue" - See paragraphs 41 to 49.

Copyright - Topic 3

General - Copyright Act - Interpretation - Section 3(1)(f) of the Copyright Act providedthat copyright holders had the sole right, "to communicate the work to the public bytelecommunication" - It was argued, based on American jurisprudence and in particular,Carton Network v. CSC Holdings Inc., that the potential audience of "each point-to-pointtransmission" had to be considered to determine whether a given transmission was "to thepublic" - The Supreme Court held that this case was of no assistance in interpreting thephrase "communicate a work to the public" because of the difference in wording betweenthe American and Canadian legislation - The court stated that "This Court has recognizedin the past important differences both in wording and in policy between Canadian andAmerican copyright legislation. It has warned that 'United States court decisions, evenwhere the factual situations are similar, must be scrutinized very carefully' ..." - Seeparagraphs 50 and 51.

Copyright - Topic 3General - Copyright Act - Interpretation - The Supreme Court of Canada stated that"Ultimately, in determining the extent of copyright, regard must be had for the fact that'[t]he Copyright Act is usually presented as a balance between promoting the publicinterest in the encouragement and dissemination of works of the arts and intellect andobtaining a just reward for the creator' (Théberge v. Galerie d'Art du Petit Champlain inc.,2002 SCC 34 ... This balance is not appropriately struck where the existence of copyrightprotection depends merely on the business model that the alleged infringer chooses toadopt rather than the underlying communication activity. Whether a business chooses toconvey copyright protected content in a traditional, 'broadcasting' type fashion, or optsfor newer approaches based on consumer choice and convenience, the end result is thesame. The copyrighted work has been made available to an aggregation of individuals ofthe general public" - See paragraph 40.

Copyright - Topic 3General - Copyright Act - Interpretation - At issue was whether the streaming of files(musical works) from the Internet triggered by individual users constitutedcommunication “to the public” of the musical works by online music services(appellants) who made the files available to the users for streaming (Copyright Act, s.3(1)(f)) - The Supreme Court of Canada stated that "... the appellants proposed rule thateach transmission should be analyzed in isolation because each was initiated at therequest of individual members of the public would have the effect of excluding allinteractive communications from the scope of the copyright holder’s exclusive rights tocommunicate to the public and to authorize such communications. A stream is ofteneffectuated at the request of the recipient. On-demand television allows viewers torequest and view the desired program at the time of their choosing. By definition, on-demand communications — relating to the so-called 'pull' technologies — are initiated atthe request of the user, independently of any other user, and each individual transmissionhappens in a point-to-point manner. None of these telecommunications would beconsidered as being made 'to the public' simply because the actual transmission occurs atthe initiative and discretion of the consumer to accept the invitation to the public toaccess the content. Nothing in the wording of s. 3(1)(f) of the [Copyright] Act impliessuch a limitation. A communication is not restricted to a purely non-interactive context" -See paragraphs 34 and 35.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - The Society of Composers, Authors and Music Publishers ofCanada applied for a tariff with respect to the performance and communication ofmusical works on, or by means of, the Internet - The Copyright Board found that thetransmission of a musical work to an individual by an online music service (streams)constituted was a communication of that work to the public by telecommunication(Copyright Act, 3(1)(f)) and thus were the proper subject for a tariff - Online musicservices, after an unsuccessful judicial review application, appealed - The Supreme Courtof Canada dismissed the appeal, holding that the transmission of any file containing amusical work, starting with the first, from the online service's website to the customer'scomputer, at the customer's request, constituted "communicat[ing] the work to the publicby telecommunication" within the meaning of s. 3(1)(f) - See paragraphs 1 to 57.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - In CCH Canadian Ltd. v. Law Society of Upper Canada (2004), theSupreme Court of Canada held that the fax transmission of a single copy to a singleindividual was not a communication to the public, but stated: "This said, a series ofrepeated fax transmissions of the same work to numerous different recipients mightconstitute communication to the public in infringement of copyright ..." - The SupremeCourt of Canada, in the case at bar, rejected the notion that CCH required that eachtransmission had to be analyzed on its own, as a separate transaction, regardless ofwhether another communication of the same work to a different customer might occur at

a later point - The court held that the focus had to be on the sender's activities incommunicating a given work over time, rather than on the individual transmission - Itwas necessary to consider the broader context to determine whether a given point-to-point transmission engaged the exclusive right to communicate to the public - Seeparagraphs 24 to 31.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - At issue was whether the streaming of files (musical works) fromthe Internet triggered by individual users constituted communication “to the public” ofthe musical works by online music services who made the files available to the users forstreaming (Copyright Act, s. 3(1)(f)) - The online music service providers argued that thecourt had to look at the "intention" of the sender in accomplishing a given transmission -As opposed to the situation where the sender took it upon himself to send out numerouscommunications ("blast" communication), in the case of a one-to one-to-onetransmission, at least that from an online music service to a customer at the customer’srequest, it was argued that there was no intention that the same work ever be transmittedagain “because it is entirely at the request of the consuming public” - In the serviceproviders' view, that would justify differential treatment of the point-to-pointtransmission and the “blast” communication - The Supreme Court of Canada rejected theservice providers' argument - See paragraphs 32 to 35.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - [See all Copyright - Topic 3].

Copyright - Topic 3440 Fees, charges or royalties - Determination of - Judicial review - [See first AdministrativeLaw - Topic 3202].

Copyright - Topic 3444Fees, charges or royalties - Internet (world wide web) - Music - [See first and secondCopyright - Topic 3 and first Copyright - Topic 3436].

Copyright - Topic 5667Copyright Board - Jurisdiction - Judicial review - [See first Administrative Law - Topic3202].

Courts - Topic 103Stare decisis - Authority of judicial decisions - English, American and Foreign authorities- American decisions - [See eighth Copyright - Topic 3].

Statutes - Topic 1604Interpretation - Extrinsic aids - General - History - [See seventh Copyright - Topic 3].

Statutes - Topic 515

Interpretation - General principles - International convention - Effect of - [See seventhCopyright - Topic 3].

Treaties - Topic 1606Operation and effect - Domestic or internal consequences - [See seventh Copyright -Topic 3].

Words and PhrasesTo the public - The Supreme Court of Canada discussed the meaning of these words asthey were used in the phrase "communicate the work to the public bytelecommunication" in s. 3(1)(f) of the Copyright Act, R.S.C. 1985, c. C-42 - Seeparagraphs 2 to 57.

Cases Noticed:Entertainment Software Association et al. v. Society of Composers, Authors and Music

Publishers of Canada, [2011] N.R. TBEd. JL.021; 2012 SCC 34, refd to. [paras. 2,74].

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339; 317N.R. 107; 2004 SCC 13, reversing (2002), 289 N.R. 1; 18 C.P.R.(4th) 161; 2002FCA 187, reversing [2000] 2 F.C. 451; 169 F.T.R. 1, dist. [para. 2].

SOCAN Statement of Royalties, Public Performance of Musical Works 1996, 1997, 1998(Tariff 22, Internet), Re (1999), 1 C.P.R. (4th) 417, refd to. [para. 6].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Associationof Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306; 2004 SCC 45, refdto. [paras. 6, 60].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1;329 N.B.R.(2d) 1; 844 A.P.R. 1; 291 D.L.R.(4th) 577; 2008 SCC 9, refd to.[paras. 11, 60].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53,refd to. [paras. 11, 72].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - seeCanada (Attorney General) v. Mowat.

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to.[paras. 11, 69].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al.,[2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 339 D.L.R.(4th)428; 2011 SCC 61, refd to. [paras. 11, 61].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C.1; 2002 SCC 33, refd to. [paras. 13, 75].

Canadian Wireless Telecommunications Assoc. et al. v. Society of Composers, Authorsand Music Publishers of Canada, [2008] 3 F.C.R. 539; 371 N.R. 272; 290 D.L.R.(4th) 753; 2008 FCA 6, refd to. [para. 31].

Composers, Authors and Publishers Assoc. of Canada Ltd. v. CTV Television NetworkLtd., [1968] S.C.R. 676, refd to. [para. 36].

Canadian Admiral Corp. v. Rediffusion, Inc., [1954] Ex. C.R. 382, refd to. [para. 36].Apple Computer Inc. et al. v. Mackintosh Computers Ltd. et al. (No. 1), [1987] 1 F.C.

173; 3 F.T.R. 118 (T.D.), affd. [1988] 1 F.C. 673; 81 N.R. 3 (F.C.A.), affd. [1990]2 S.C.R. 209; 110 N.R. 66, refd to. [para. 39].

Robertson v. Thomson Corp. et al., [2006] 2 S.C.R. 363; 353 N.R. 104; 217 O.A.C. 332;2006 SCC 43, refd to. [para. 39].

Théberge v. Galerie d'Art du Petit Champlain inc. et al., [2002] 2 S.C.R. 336; 285 N.R.267; 2002 SCC 34, refd to. [para. 40].

Cartoon Network v. CSC Holdings, Inc. (2008), 536 F.3d 121, not folld. [para. 50].Blue Crest Music Inc. et al. v. Compo Co., [1980] 1 S.C.R. 357; 29 N.R. 296, refd to.

[para. 51].Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385

N.R. 206; 2009 SCC 12, refd to. [para. 64].Chamberlain Group Inc. v. Lynx Industries Inc. (2010), 379 F.T.R. 270; 2010 FC 1287,

refd to. [para. 71]. Alticor Inc. et al. v. Nutravite Pharmaceuticals Inc. (2005), 339 N.R. 56; 257 D.L.R.(4th)

60; 2005 FCA 269, refd to. [para. 71].Molson Breweries, A Partnership v. Labatt (John) Ltd. et al., [2000] 3 F.C. 145; 252 N.R.

91 (F.C.A.), refd to. [para. 71].Doré v. Barreau du Québec (2012), 428 N.R. 146; 2012 SCC 12, refd to. [para. 73].Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2

S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43,refd to. [para. 77].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Councilv. British Columbia Utilities Commission et al.

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R.157; 177 N.R. 1, refd to. [para. 78].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 79].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (TreasuryBoard) et al. (2011), 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 424 N.R. 220;2011 SCC 62, refd to. [para. 79].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R.77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 81].

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360N.R. 1; 2007 SCC 15, refd to. [para. 82].

Mattel Inc. v. 3894207 Canada Inc. et al., [2006] 1 S.C.R. 772; 348 N.R. 340; 2006 SCC22, refd to. [para. 83].

Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, refd to. [para. 87].Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al. (2012), 428

N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 87].

Statutes Noticed:Administrative Tribunals Act, S.B.C. 2004, c. 45, generally [para. 77].Berne Convention for the Protection of Literary and Artistic Works, 828 U.N.T.S. 221,

art. 11 [para. 36].Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, sect.

61, sect. 62 [para. 37].

Canadian Human Rights Act, R.S.C. 1985, c. H-6, generally [para. 18]; sect. 53(2)(c),sect. 53(2)(d) [para. 72].

Code of ethics of advocates, R.R.Q. 1981, c. B-1, generally [paras. 18, 73]. Copyright Act, R.S.C. 1985, c. C-42, sect. 2 [para. 23]; sect. 3(1) [para. 22].North American Free Trade Agreement, Can. T.S. 1994 No. 2, art. 1721(2) [para. 25]. Trade-marks Act, R.S.C. 1985, c. T-13, sect. 6 [para. 70].WIPO Copyright Treaty, 2186 U.N.T.S. 121, art. 1(1) [para. 44]; art. 8 [para. 45].

Authors and Works Noticed:Canada, Treasury Board, Copyright Board Canada: Performance Report for the period

ending March 31, 2003 (online:www.collectionscanada.gc.ca/webarchives/20060120100901/ http://www.tbs-sct.gc.ca/rma/dpr/02-03/cb-cda/cb-cda03d_e.asp)., generally [para. 66].

Geist, Michael, ed., From "Radical Extremism" to "Balanced Copyright": CanadianCopyright and the Digital Agenda (2010), p. 514 [para. 65].

Ginsburg, Jane C., The (new?) right of making available to the public, in David Vaverand Lionel Bently, eds., Intellectual Property in the New Millennium: Essays inHonour of William R. Cornish (2004), p. 246 [para. 48].

Handa, Sunny, Copyright Law in Canada (2002), p. 320 [para. 37].McKeown, John S., Fox on Canadian Law of Copyright and Industrial Designs (4th Ed.

2009) (loose-leaf), p. 21:86 [para. 36].Mullan, David J., Establishing the Standard of Review: The Struggle for Complexity?

(2004), 17 C.J.A.L.P. 59, pp. 74 [para. 85]; 93 [para. 64].Ricketson, Sam, and Ginsburg, Jane, International Copyright and Neighbouring Rights:

The Berne Convention and Beyond (2nd Ed. 2006), vol. I, paras. 12:48, 12.49[para. 43]; 12:57 [para. 46].

Vaver, David, Intellectual Property Law: Copyright, Patents, Trade-Marks (2nd Ed.2011), p. 173 [para. 54].

Vaver, David and Bently, Lionel, eds., Intellectual Property in the New Millennium:Essays in Honour of William R. Cornish (2004), p. 246 [para. 48].

Wilkinson, Margaret Ann, Copyright, Collectives, and Contracts: New Math forEducational Institutions and Libraries, in Michael Geist, ed., From “RadicalExtremism” to “Balanced Copyright”: Canadian Copyright and the DigitalAgenda (2010), p. 514 [para. 65].

World Intellectual Property Organization, WIPO Intellectual Property Handbook: Policy,Law and Use, ch. 5, “International Treaties and Conventions on IntellectualProperty”, No. 489 (2nd Ed. 2004), para. 5.226 [para. 47].

Counsel:Gerald L. Kerr-Wilson, Ariel A. Thomas and Julia Kennedy, for the appellants;Gilles Daigle, D. Lynne Watt, Paul Spurgeon and Henry Brown, Q.C., for the respondent;Written submissions only by Casey M. Chisick, Timothy Pinos and Jason Beitchman, for

the intervener, CMRRA-SODRAC Inc.;Written submissions only by Tim Gilbert, Sana Halwani and Sundeep Chauhan, for the

intervener, Cineplex Entertainment LP;Written submissions only by Jeremy de Beer and David Fewer, for the intervener, the

Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.Written submissions only by Michael Koch, for the interveners, Apple Canada Inc. and

Apple Inc.

Solicitors of Record: Fasken Martineau DuMoulin, Ottawa, Ontario, for the appellants;Gowling Lafleur Henderson, Ottawa, Ontario, for the respondent.Cassels Brock & Blackwell, Toronto, Ontario, for the intervenor, CMRRA-SODRAC

Inc.;Gilbert’s, Toronto, Ontario, for the intervener, Cineplex Entertainment LP;Canadian Internet Policy and Public Interest Clinic: University of Ottawa, Ottawa,

Ontario, for the intervener, the Samuelson-Glushko;Goodmans, Toronto, Ontario, for the interveners, Apple Canada Inc. and Apple Inc.

This appeal was heard on December 6, 2011, before McLachlin C.J.C., LeBel,Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the SupremeCourt of Canada. The decision of the court was released on July 12, 2012, in both officiallanguages, including the following opinions:

Rothstein, J. (McLachlin, C.J.C., LeBel, Deschamps, Fish, Cromwell, Moldaverand Karakatsanis, JJ., concurring) - see paragraphs 1 to 57;

Abella, J., concurring reasons - see paragraphs 58 to 88.

Appeal allowed in part.

Editor: Elizabeth M.A. Turgeon

Administrative Law - Topic 9102Boards and tribunals - Judicial review - Scope of review - The Copyright Board (theFederal Court of Appeal agreeing), opined that streams of musical works over theInternet came within the exclusive right of copyright holders to communicate "to thepublic" by telecommunication (Copyright Act (s. 3(1)(f)) - Accordingly Tariffs could beestablished - Music service providers appealed - The Supreme Court of Canada discussedthe standard of review given that the court and the Copyright Board had concurrentjurisdiction at first instance in interpreting the Copyright Act - That concurrentjurisdiction rebutted the presumption of reasonablness review of the Board's decisions onquestions of law under its home statute - Therefore, the standard of correctness was theappropriate standard of review on questions of law arising on judicial review from theCopyright Board, such as the interpretation issue in this case - However, the Board'sapplication of the correct legal principles to the facts of a particular matter should betreated with deference - See paragraphs 10 to 20.

Administrative Law - Topic 9102Boards and tribunals - Judicial review - Scope of review - The Supreme Court of Canada(majority) stated that it had to "... respectfully disagree with Abella J.’s

characterization ... of the holding in ATA [Alberta Teachers' Association v. Informationand Privacy Commissioner, SCC 2011] as meaning that the 'exceptions to thepresumption of home statute deference are … constitutional questions and questions oflaw of central importance to the legal system and outside the adjudicator’s specializedexpertise' ... ATA simply reinforced the direction in Dunsmuir [SCC 2008] that issues thatfall under the category of interpretation of the home statute or closely related statutesnormally attract a deferential standard of review ... My colleague’s approach would ineffect mean that the reasonableness standard applies to all interpretations of homestatutes. Yet, ATA and Dunsmuir allow for the exceptional other case to rebut thepresumption of reasonableness review for questions involving the interpretation of thehome statute" - See paragraph 16.

Administrative Law - Topic 9102Boards and tribunals - Judicial review - Scope of review - The Supreme Court of Canada,per Rothstein, J., stated that "I wish to be clear that the statutory scheme under whichboth a tribunal and a court may decide the same legal question at first instance is quiteunlike the scheme under which the vast majority of judicial reviews arises. Concurrentjurisdiction at first instance seems to appear only under intellectual property statuteswhere Parliament has preserved dual jurisdiction between the tribunals and the courts.However, I leave the determination of the appropriate standard of review of a tribunaldecision under other intellectual property statutes for a case in which it arises. Nothing inthese reasons should be taken as departing from Dunsmuir and its progeny as to thepresumptively deferential approach to the review of questions of law decided by tribunalsinvolving their home statute or statutes closely connected to their function" - Seeparagraph 19.

Administrative Law - Topic 9103Boards and tribunals - Judicial review - Scope of review - The Copyright Board (theFederal Court of Appeal agreeing), opined that streams of musical works over theInternet came within the exclusive right of copyright holders to communicate "to thepublic" by telecommunication (Copyright Act (s. 3(1)(f)) - Accordingly Tariffs could beestablished - Music service providers appealed - The Supreme Court of Canada discussedthe standard of review given that the court and the Copyright Board had concurrentjurisdiction at first instance in interpreting the Copyright Act - That concurrentjurisdiction rebutted the presumption of reasonablness review of the Board's decisions onquestions of law under its home statute - Therefore, the standard of correctness was theappropriate standard of review on questions of law arising on judicial review from theCopyright Board, such as the interpretation issue in this case - However, the Board'sapplication of the correct legal principles to the facts of a particular matter should betreated with deference - See paragraphs 10 to 20.

Administrative Law - Topic 9103Boards and tribunals - Judicial review - Scope of review - The Supreme Court of Canada(majority) stated that it had to "... respectfully disagree with Abella J.’scharacterization ... of the holding in ATA [Alberta Teachers' Association v. Informationand Privacy Commissioner, SCC 2011] as meaning that the 'exceptions to the

presumption of home statute deference are … constitutional questions and questions oflaw of central importance to the legal system and outside the adjudicator’s specializedexpertise' ... ATA simply reinforced the direction in Dunsmuir [SCC 2008] that issues thatfall under the category of interpretation of the home statute or closely related statutesnormally attract a deferential standard of review ... My colleague’s approach would ineffect mean that the reasonableness standard applies to all interpretations of homestatutes. Yet, ATA and Dunsmuir allow for the exceptional other case to rebut thepresumption of reasonableness review for questions involving the interpretation of thehome statute" - See paragraph 16.

Administrative Law - Topic 9103Boards and tribunals - Judicial review - Scope of review - The Supreme Court of Canada,per Rothstein, J., stated that "I wish to be clear that the statutory scheme under whichboth a tribunal and a court may decide the same legal question at first instance is quiteunlike the scheme under which the vast majority of judicial reviews arises. Concurrentjurisdiction at first instance seems to appear only under intellectual property statuteswhere Parliament has preserved dual jurisdiction between the tribunals and the courts.However, I leave the determination of the appropriate standard of review of a tribunaldecision under other intellectual property statutes for a case in which it arises. Nothing inthese reasons should be taken as departing from Dunsmuir and its progeny as to thepresumptively deferential approach to the review of questions of law decided by tribunalsinvolving their home statute or statutes closely connected to their function" - Seeparagraph 19.

Administrative Law - Topic 9105Boards and tribunals - Judicial review - Question of law - The Copyright Board (theFederal Court of Appeal agreeing), opined that streams of musical works over theInternet came within the exclusive right of copyright holders to communicate "to thepublic" by telecommunication (Copyright Act (s. 3(1)(f)) - Accordingly Tariffs could beestablished - Music service providers appealed - The Supreme Court of Canada discussedthe standard of review given that the court and the Copyright Board had concurrentjurisdiction at first instance in interpreting the Copyright Act - That concurrentjurisdiction rebutted the presumption of reasonablness review of the Board's decisions onquestions of law under its home statute - Therefore, the standard of correctness was theappropriate standard of review on questions of law arising on judicial review from theCopyright Board, such as the interpretation issue in this case - However, the Board'sapplication of the correct legal principles to the facts of a particular matter should betreated with deference - See paragraphs 10 to 20.

Administrative Law - Topic 9105Boards and tribunals - Judicial review - Question of law - The Supreme Court of Canada(majority) stated that it had to "... respectfully disagree with Abella J.’scharacterization ... of the holding in ATA [Alberta Teachers' Association v. Informationand Privacy Commissioner, SCC 2011] as meaning that the 'exceptions to thepresumption of home statute deference are … constitutional questions and questions oflaw of central importance to the legal system and outside the adjudicator’s specialized

expertise' ... ATA simply reinforced the direction in Dunsmuir [SCC 2008] that issues thatfall under the category of interpretation of the home statute or closely related statutesnormally attract a deferential standard of review ... My colleague’s approach would ineffect mean that the reasonableness standard applies to all interpretations of homestatutes. Yet, ATA and Dunsmuir allow for the exceptional other case to rebut thepresumption of reasonableness review for questions involving the interpretation of thehome statute" - See paragraph 16.

Administrative Law - Topic 9105Boards and tribunals - Judicial review - Question of law - The Supreme Court of Canada,per Rothstein, J., stated that "I wish to be clear that the statutory scheme under whichboth a tribunal and a court may decide the same legal question at first instance is quiteunlike the scheme under which the vast majority of judicial reviews arises. Concurrentjurisdiction at first instance seems to appear only under intellectual property statuteswhere Parliament has preserved dual jurisdiction between the tribunals and the courts.However, I leave the determination of the appropriate standard of review of a tribunaldecision under other intellectual property statutes for a case in which it arises. Nothing inthese reasons should be taken as departing from Dunsmuir and its progeny as to thepresumptively deferential approach to the review of questions of law decided by tribunalsinvolving their home statute or statutes closely connected to their function" - Seeparagraph 19.

Administrative Law - Topic 9122Boards and tribunals - Administrative appeals - Scope of appeal or standard of review -The Copyright Board (the Federal Court of Appeal agreeing), opined that streams ofmusical works over the Internet came within the exclusive right of copyright holders tocommunicate "to the public" by telecommunication (Copyright Act (s. 3(1)(f)) -Accordingly Tariffs could be established - Music service providers appealed - TheSupreme Court of Canada discussed the standard of review given that the court and theCopyright Board had concurrent jurisdiction at first instance in interpreting the CopyrightAct - That concurrent jurisdiction rebutted the presumption of reasonablness review ofthe Board's decisions on questions of law under its home statute - Therefore, the standardof correctness was the appropriate standard of review on questions of law arising onjudicial review from the Copyright Board, such as the interpretation issue in this case -However, the Board's application of the correct legal principles to the facts of a particularmatter should be treated with deference - See paragraphs 10 to 20.

Administrative Law - Topic 9122Boards and tribunals - Administrative appeals - Scope of appeal or standard of review -The Supreme Court of Canada (majority) stated that it had to "... respectfully disagreewith Abella J.’s characterization ... of the holding in ATA [Alberta Teachers' Associationv. Information and Privacy Commissioner, SCC 2011] as meaning that the 'exceptions tothe presumption of home statute deference are … constitutional questions and questionsof law of central importance to the legal system and outside the adjudicator’s specializedexpertise' ... ATA simply reinforced the direction in Dunsmuir [SCC 2008] that issues thatfall under the category of interpretation of the home statute or closely related statutes

normally attract a deferential standard of review ... My colleague’s approach would ineffect mean that the reasonableness standard applies to all interpretations of homestatutes. Yet, ATA and Dunsmuir allow for the exceptional other case to rebut thepresumption of reasonableness review for questions involving the interpretation of thehome statute" - See paragraph 16.

Administrative Law - Topic 9122Boards and tribunals - Administrative appeals - Scope of appeal or standard of review -The Supreme Court of Canada, per Rothstein, J., stated that "I wish to be clear that thestatutory scheme under which both a tribunal and a court may decide the same legalquestion at first instance is quite unlike the scheme under which the vast majority ofjudicial reviews arises. Concurrent jurisdiction at first instance seems to appear onlyunder intellectual property statutes where Parliament has preserved dual jurisdictionbetween the tribunals and the courts. However, I leave the determination of theappropriate standard of review of a tribunal decision under other intellectual propertystatutes for a case in which it arises. Nothing in these reasons should be taken asdeparting from Dunsmuir and its progeny as to the presumptively deferential approach tothe review of questions of law decided by tribunals involving their home statute orstatutes closely connected to their function" - See paragraph 19.

Copyright - Topic 2General - Copyright defined (incl. extent of copyright) - The Supreme Court of Canadastated that "Ultimately, in determining the extent of copyright, regard must be had for thefact that '[t]he Copyright Act is usually presented as a balance between promoting thepublic interest in the encouragement and dissemination of works of the arts and intellectand obtaining a just reward for the creator' (Théberge v. Galerie d'Art du Petit Champlaininc., 2002 SCC 34 ... This balance is not appropriately struck where the existence ofcopyright protection depends merely on the business model that the alleged infringerchooses to adopt rather than the underlying communication activity. Whether a businesschooses to convey copyright protected content in a traditional, 'broadcasting' typefashion, or opts for newer approaches based on consumer choice and convenience, theend result is the same. The copyrighted work has been made available to an aggregationof individuals of the general public" - See paragraph 40.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - Section 3(1)(f) of the Copyright Act gave copyright holders the soleright, "to communicate the work to the public by telecommunication" - At issue waswhether streaming of files (musical works) from the Internet triggered by individual usersconstituted communication “to the public” of the musical works by online music serviceproviders - The Supreme Court of Canada stated that "Following the online musicservices' business model, musical works are indiscriminately made available to anyonewith Internet access to the online music service's website. This means that the customersrequesting the streams are not members of a narrow group, such as a family or a circle offriends. Simply, they are 'the public'. In these circumstances, the transmission of any filecontaining a musical work, starting with the first, from the online service's website to the

customer's computer, at the customer's request, constitutes "communicat[ing] the work tothe public by telecommunication" - See paragraph 56.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - Section 3(1)(f) of the Copyright Act provided that copyright holdershad the sole right, "to communicate the work to the public by telecommunication" - Atissue was whether streaming of files (musical works) from the Internet triggered byindividual users constituted communication “to the public” of the musical works byonline music service providers - The online music service providers claimed that a point-to-point transmission was necessarily a private transaction outside the scope of theexclusive right to communicate to the public - The Supreme Court of Canada held thatalthough they occurred between the online music provider and the individual consumer ina point-to-point fashion, the transmissions of musical works in this case, where theyconstituted "communications", could be nothing other than communications "to thepublic" - The online music service providers business model was premised on theexpectation of multiple sales of any given musical work listed in their catalogue - Thenecessary implication of that business model was that there would be a "series ofrepeated ... transmissions of the same work to numerous different recipients" which madethis case distinguishable from CCH Canadian Ltd. et al. v. Law Society of Upper Canada(2004 SCC) - See paragraphs 1 to 57.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - Section 3(1)(f) of the Copyright Act provided that copyright holdershad the sole right, "to communicate the work to the public by telecommunication" - TheSupreme Court of Canada, quoted Sharlow, J.A., in Canadian WirelessTelecommunications Assn. v. Society of Composers, Authors and Music Publishers ofCanada (FCA 2008) as follows: "[I]n determining whether paragraph 3(1)(f) applies tothe transmission of a musical work in the form of a digital audio file, it is not enough toask whether there is a one-to-one communication, or a one-to-one communicationrequested by the recipient. The answer to either of those questions would not necessarilybe determinative because a series of transmissions of the same musical work to numerousdifferent recipients may be a communication to the public if the recipients comprise thepublic, or a significant segment of the public" - See paragraph 52.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - Section 3(1)(f) of the Copyright Act provided that copyright holdershad the sole right, "to communicate the work to the public by telecommunication" - TheSupreme Court of Canada stated that "CCH (SCC) [CCH Canadian Ltd. et al. v. LawSociety of Upper Canada (2004)] determined that a 'series of repeated ... transmissions ofthe same work to numerous different recipients' may constitute a communication 'to thepublic' within the meaning of s. 3(1)(f) of the Act (CCH (SCC), at para. 78). Where sucha series of point-to-point communications of the same work to an aggregation ofindividuals is found to exist, it matters little for the purposes of copyright protection

whether the members of the public receive the communication in the same or in differentplaces, at the same or at different times or at their own or the sender's initiative" - Seeparagraph 52.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - The Supreme Court of Canada explained how the Copyright Act hadchanged from granting technology specific communication rights to copyright holders tocommunicate their literary, dramatic, musical or artistic works by "radio-communication"("push" technologies) to granting the technologically neutral rights to "communicate ... tothe public by telecommunication" - The court stated that the Act had evolved to ensure itscontinued relevance in an evolving technological environment - History did not supportreading into the Act restrictions which were not apparent from and were eveninconsistent with the neutral language of the Act itself - The court noted that it had longrecognized in the context of the reproduction right that, where possible, the Act should beinterpreted to extend to technologies that were not or could not have been contemplatedat the time of its drafting (i.e., new technologies) - See paragraphs 36 to 40.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - Section 3(1)(f) of the Copyright Act provided that copyright inrelation to a work meant the sole right, "in the case of any literary, dramatic, musical orartistic work, to communicate the work to the public by telecommunication" - TheSupreme Court of Canada held that s. 3(1)(f) was not limited to traditional "push"technologies (traditional media that operated on a broadcasting or "push" model) -Rather, s. 3(1)(f) was technology neutral - See paragraphs 36 to 40.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - Section 3(1)(f) of the Copyright Act provided that copyright holdershad the sole right, "to communicate the work to the public by telecommunication" - TheSupreme Court of Canada noted that developments at the international level wereconsistent in encompassing on-demand communications to the public in copyrightprotection, in particular art. 11bis of the Berne Convention (of which Canada was a party)and the WIPO Copyright Treaty (WCT) - The court noted that Canada had signed, butnot yet ratified or legislatively adopted the WCT - "Therefore, the WCT is not binding inthis country. The WCT is only cited to demonstrate that the broad interpretation of s. 3(1)(f) of the Act, recognizing that a communication 'to the public' subject to copyrightprotection may occur through point-to-point transmissions at the user's request, is not outof step with Article 8 of the WCT and international thinking on the issue" - Seeparagraphs 41 to 49.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - Section 3(1)(f) of the Copyright Act provided that copyright holdershad the sole right, "to communicate the work to the public by telecommunication" - It

was argued, based on American jurisprudence and in particular, Carton Network v. CSCHoldings Inc., that the potential audience of "each point-to-point transmission" had to beconsidered to determine whether a given transmission was "to the public" - The SupremeCourt held that this case was of no assistance in interpreting the phrase "communicate awork to the public" because of the difference in wording between the American andCanadian legislation - The court stated that "This Court has recognized in the pastimportant differences both in wording and in policy between Canadian and Americancopyright legislation. It has warned that 'United States court decisions, even where thefactual situations are similar, must be scrutinized very carefully' ..." - See paragraphs 50and 51.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - The Supreme Court of Canada stated that "Ultimately, indetermining the extent of copyright, regard must be had for the fact that '[t]he CopyrightAct is usually presented as a balance between promoting the public interest in theencouragement and dissemination of works of the arts and intellect and obtaining a justreward for the creator' (Théberge v. Galerie d'Art du Petit Champlain inc., 2002 SCC34 ... This balance is not appropriately struck where the existence of copyright protectiondepends merely on the business model that the alleged infringer chooses to adopt ratherthan the underlying communication activity. Whether a business chooses to conveycopyright protected content in a traditional, 'broadcasting' type fashion, or opts for newerapproaches based on consumer choice and convenience, the end result is the same. Thecopyrighted work has been made available to an aggregation of individuals of the generalpublic" - See paragraph 40.

Copyright - Topic 3436 Fees, charges or royalties - Determination of - Communication to the public bytelecommunication - At issue was whether the streaming of files (musical works) fromthe Internet triggered by individual users constituted communication “to the public” ofthe musical works by online music services (appellants) who made the files available tothe users for streaming (Copyright Act, s. 3(1)(f)) - The Supreme Court of Canada statedthat "... the appellants proposed rule that each transmission should be analyzed inisolation because each was initiated at the request of individual members of the publicwould have the effect of excluding all interactive communications from the scope of thecopyright holder’s exclusive rights to communicate to the public and to authorize suchcommunications. A stream is often effectuated at the request of the recipient. On-demandtelevision allows viewers to request and view the desired program at the time of theirchoosing. By definition, on-demand communications — relating to the so-called 'pull'technologies — are initiated at the request of the user, independently of any other user,and each individual transmission happens in a point-to-point manner. None of thesetelecommunications would be considered as being made 'to the public' simply becausethe actual transmission occurs at the initiative and discretion of the consumer to acceptthe invitation to the public to access the content. Nothing in the wording of s. 3(1)(f) ofthe [Copyright] Act implies such a limitation. A communication is not restricted to apurely non-interactive context" - See paragraphs 34 and 35.

Copyright - Topic 3440 Fees, charges or royalties - Determination of - Judicial review - The Copyright Board (theFederal Court of Appeal agreeing), opined that streams of musical works over theInternet came within the exclusive right of copyright holders to communicate "to thepublic" by telecommunication (Copyright Act (s. 3(1)(f)) - Accordingly Tariffs could beestablished - Music service providers appealed - The Supreme Court of Canada discussedthe standard of review given that the court and the Copyright Board had concurrentjurisdiction at first instance in interpreting the Copyright Act - That concurrentjurisdiction rebutted the presumption of reasonablness review of the Board's decisions onquestions of law under its home statute - Therefore, the standard of correctness was theappropriate standard of review on questions of law arising on judicial review from theCopyright Board, such as the interpretation issue in this case - However, the Board'sapplication of the correct legal principles to the facts of a particular matter should betreated with deference - See paragraphs 10 to 20.

Copyright - Topic 3444Fees, charges or royalties - Internet (world wide web) - Music - Section 3(1)(f) of theCopyright Act gave copyright holders the sole right, "to communicate the work to thepublic by telecommunication" - At issue was whether streaming of files (musical works)from the Internet triggered by individual users constituted communication “to the public”of the musical works by online music service providers - The Supreme Court of Canadastated that "Following the online music services' business model, musical works areindiscriminately made available to anyone with Internet access to the online musicservice's website. This means that the customers requesting the streams are not membersof a narrow group, such as a family or a circle of friends. Simply, they are 'the public'. Inthese circumstances, the transmission of any file containing a musical work, starting withthe first, from the online service's website to the customer's computer, at the customer'srequest, constitutes "communicat[ing] the work to the public by telecommunication" -See paragraph 56.

Copyright - Topic 3444Fees, charges or royalties - Internet (world wide web) - Music - Section 3(1)(f) of theCopyright Act provided that copyright holders had the sole right, "to communicate thework to the public by telecommunication" - At issue was whether streaming of files(musical works) from the Internet triggered by individual users constitutedcommunication “to the public” of the musical works by online music service providers -The online music service providers claimed that a point-to-point transmission wasnecessarily a private transaction outside the scope of the exclusive right to communicateto the public - The Supreme Court of Canada held that although they occurred betweenthe online music provider and the individual consumer in a point-to-point fashion, thetransmissions of musical works in this case, where they constituted "communications",could be nothing other than communications "to the public" - The online music serviceproviders business model was premised on the expectation of multiple sales of any givenmusical work listed in their catalogue - The necessary implication of that business modelwas that there would be a "series of repeated ... transmissions of the same work to

numerous different recipients", which made this case distinguishable from CCHCanadian Ltd. et al. v. Law Society of Upper Canada (2004 SCC) - See paragraphs 1 to57.

Copyright - Topic 3444Fees, charges or royalties - Internet (world wide web) - Music - The Society ofComposers, Authors and Music Publishers of Canada applied for a tariff with respect tothe performance and communication of musical works on, or by means of, the Internet -The Copyright Board found that the transmission of a musical work to an individual byan online music service (streams) constituted was a communication of that work to thepublic by telecommunication (Copyright Act, 3(1)(f)) and thus were the proper subjectfor a tariff - Online music services, after an unsuccessful judicial review application,appealed - The Supreme Court of Canada dismissed the appeal, holding that thetransmission of any file containing a musical work, starting with the first, from the onlineservice's website to the customer's computer, at the customer's request, constituted"communicat[ing] the work to the public by telecommunication" within the meaning of s.3(1)(f) - See paragraphs 1 to 57.

Copyright - Topic 5667Copyright Board - Jurisdiction - Judicial review - The Copyright Board (the FederalCourt of Appeal agreeing), opined that streams of musical works over the Internet camewithin the exclusive right of copyright holders to communicate "to the public" bytelecommunication (Copyright Act (s. 3(1)(f)) - Accordingly Tariffs could be established- Music service providers appealed - The Supreme Court of Canada discussed thestandard of review given that the court and the Copyright Board had concurrentjurisdiction at first instance in interpreting the Copyright Act - That concurrentjurisdiction rebutted the presumption of reasonablness review of the Board's decisions onquestions of law under its home statute - Therefore, the standard of correctness was theappropriate standard of review on questions of law arising on judicial review from theCopyright Board, such as the interpretation issue in this case - However, the Board'sapplication of the correct legal principles to the facts of a particular matter should betreated with deference - See paragraphs 10 to 20.

Courts - Topic 103Stare decisis - Authority of judicial decisions - English, American and Foreign authorities- American decisions - Section 3(1)(f) of the Copyright Act provided that copyrightholders had the sole right, "to communicate the work to the public bytelecommunication" - It was argued, based on American jurisprudence and in particular,Carton Network v. CSC Holdings Inc., that the potential audience of "each point-to-pointtransmission" had to be considered to determine whether a given transmission was "to thepublic" - The Supreme Court held that this case was of no assistance in interpreting thephrase "communicate a work to the public" because of the difference in wording betweenthe American and Canadian legislation - The court stated that "This Court has recognizedin the past important differences both in wording and in policy between Canadian andAmerican copyright legislation. It has warned that 'United States court decisions, evenwhere the factual situations are similar, must be scrutinized very carefully' ..." - See

paragraphs 50 and 51.

Statutes - Topic 1604Interpretation - Extrinsic aids - General - History - The Supreme Court of Canadaexplained how the Copyright Act had changed from granting technology specificcommunication rights to copyright holders to communicate their literary, dramatic,musical or artistic works by "radio-communication" ("push" technologies) to granting thetechnologically neutral rights to "communicate ... to the public by telecommunication" -The court stated that the Act had evolved to ensure its continued relevance in an evolvingtechnological environment - History did not support reading into the Act restrictionswhich were not apparent from and were even inconsistent with the neutral language ofthe Act itself - The court noted that it had long recognized in the context of thereproduction right that, where possible, the Act should be interpreted to extend totechnologies that were not or could not have been contemplated at the time of its drafting(i.e., new technologies) - See paragraphs 36 to 40.

Statutes - Topic 515Interpretation - General principles - International convention - Effect of - Section 3(1)(f)of the Copyright Act provided that copyright holders had the sole right, "to communicatethe work to the public by telecommunication" - The Supreme Court of Canada noted thatdevelopments at the international level were consistent in encompassing on-demandcommunications to the public in copyright protection, in particular art. 11bis of the BerneConvention (of which Canada was a party) and the WIPO Copyright Treaty (WCT) - Thecourt noted that Canada had signed, but not yet ratified or legislatively adopted the WCT- "Therefore, the WCT is not binding in this country. The WCT is only cited todemonstrate that the broad interpretation of s. 3(1)(f) of the Act, recognizing that acommunication 'to the public' subject to copyright protection may occur through point-to-point transmissions at the user's request, is not out of step with Article 8 of the WCT andinternational thinking on the issue" - See paragraphs 41 to 49.

Treaties - Topic 1606Operation and effect - Domestic or internal consequences - Section 3(1)(f) of theCopyright Act provided that copyright holders had the sole right, "to communicate thework to the public by telecommunication" - The Supreme Court of Canada noted thatdevelopments at the international level were consistent in encompassing on-demandcommunications to the public in copyright protection, in particular art. 11bis of the BerneConvention (of which Canada was a party) and the WIPO Copyright Treaty (WCT) - Thecourt noted that Canada had signed, but not yet ratified or legislatively adopted the WCT- "Therefore, the WCT is not binding in this country. The WCT is only cited todemonstrate that the broad interpretation of s. 3(1)(f) of the Act, recognizing that acommunication 'to the public' subject to copyright protection may occur through point-to-point transmissions at the user's request, is not out of step with Article 8 of the WCT andinternational thinking on the issue" - See paragraphs 41 to 49.