Volume V

Issue : 17: October 25, 2007

• Copyright Board Releases Tariff 22 Decision
• Domain Names Ordered Transferred Based on Trade mark Confusion
• Identities of Anonymous Internet Posters at Stake in U.K. Cases
• Website Terms and Conditions Enforceable with Sufficient Notice
• New England Patriots Win Again against StubHub
• Ticketmaster Wins Injunction against Ticket Ordering Software Co.
• U.S. Court of Appeal Rules that Sports Statistics are in the Public Domain

Home > Volume V > Issue 17: October 25, 2007 > Copyright Board Releases Tariff 22 Decision

Copyright Board Releases Tariff 22 Decision

On October 17, 2007, Canada’s Copyright Board released a partial decision on the Society of Authors, Composers and Music Publishers of Canada (SOCAN) proposed Tariff 22, which tariff is intended to capture online music downloading as “communication to the public by telecommunication of musical works by means of Internet transmissions or similar transmission facilities.” Numerous members of the telecommunications industry challenged the tariff.

The board’s decision determined the four main issues as follows:

1. The transmission of a download is a “communication to the public by telecommunication” under the Copyright Act, given that the transmission of a download over the Internet communicates the content of the download. Also, the content of a download is communicated when it is received, whether or not it is ever used. Lastly, even though some downloads cannot be heard during transmission, they are still being communicated.
2. Offering and listening to music previews falls under the fair dealing exception to copyright infringement, because the use of previews is to research a purchase before it is made. Even though some parties may abuse previews, the general purpose and policy is for research.
3. The tariff can be imposed retroactively to 1996, given that the original tariff targets all the uses that SOCAN seeks to include in the current tariff.
4. The tariff can apply to music downloading services where the servers are located outside of Canada if there is a real and substantial connection between the communication and Canada.

The decision only addresses online music uses and not any of the other uses mentioned in the tariff. They will be addressed at a later date.

Some commentators feel that the tariff is too high and will have a crippling effect on the distribution of digital content.

For a copy of the decision, visit:

http://www.cb-cda.gc.ca/decisions/m20071018-b.pdf