Rogers Communications Inc., Rogers Wireless Partnership ... - Slaw

customer's computer, at the customer's request, constitutes "communicat[ing] the work tothe public by telecommunication" - See paragraph 56.Copyright - Topic 3436Fees, 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 pointto-pointtransmission 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 3436Fees, 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 3436Fees, 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