The Appellants, Rogers Communications Inc. and other online music service providers, appealed the Copyright Board’s decision, which created a tariff for the online streaming of music. The Appellants argued that offering streaming music was not “communicating to the public” for the purposes of the Copyright Act. The Respondent Society of Composers, Authors, and Music Publishers of Canada successfully contested the appeal.

[2012] S.C.J. No. 35

2012 SCC 35

Supreme Court of Canada

McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

July 12, 2012

The Appellants, Rogers Communications Inc., Rogers Wireless Partnership, Shaw Cablesystems G.P., Bell Canada and Telus Communications Company, offer online music services, which allow users to “stream” or download songs or albums. The Respondent, the Society of Composers, Authors, and Music Publishers of Canada (the Society), administers the right to communicate the works that are covered by its members’ copyrights. This case dealt with the Society’s claim that the online music services offering “streaming” music were “communications to the public” for the purposes of section 3(1)(f) of the Copyright Act.

In 1995, the Society proposed a tariff for various uses of musical works on the internet. The Copyright Board considered several legal and jurisdictional issues relating to this proposal in its “Phase 1” decision in 1999. The Phase 1 decision was appealed to the Supreme Court of Canada and, in that 2004 decision, Mr. Justice Binnie commented on the interpretation of the phrase, “communicated to the public”. He stated that a communication may be “to the public” when it is made to individual members of the public, regardless of whether they receive the communication at the same or different times. He found the issue was “no longer contested”.

After the 2004 SCC decision, the Board proceeded to phase 2 of its process for establishing a tariff for the communication of musical works over the internet for 1996 to 2006. The Board accepted that a point-to-point transmission of music to individual members of the public is a communication “to the public”. The Board therefore proceeded to establish tariffs for the online streaming of music that is subject to copyright. The Appellants filed an application for judicial review in the Federal Court of Appeal but the application was unanimously dismissed. The Federal Court of Appeal held the standard of review was reasonableness and the Board’s decision was reasonable. The Appellants then appealed to the Supreme Court of Canada.

The majority first considered the standard of review. The majority noted that the Copyright Act is subject to judicial review on a correctness standard in the context of actions for copyright infringement. The majority considered whether it would be inconsistent for the Courts to exercise a reasonableness standard when reviewing the Board’s interpretation of the same act. The majority concluded that “correctness” was the standard of review on pure questions of law arising from the Copyright Board. The majority concluded the issue in this case was a question of law (not mixed law and fact) because the court was considering whether a point-to-point transmission can ever constitute a “communication to the public”.

The majority considered the previous case of CCH Canadian Ltd. v Law Society of Upper Canada where the SCC interpreted the phrase “to the public” in section 3(1)(f) of the Copyright Act. That case considered a library service that faxed reported judgments and excerpts of legal materials to individual lawyers at their request. The Federal Court of Appeal in that case held that the communications needed to be targeted to an aggregation of individuals. The SCC agreed with that Court’s decision but limited its ruling to the facts in CCH. Specifically, the SCC said a series of repeated fax transmissions of the same work to numerous different recipients might constitute communication “to the public” but there was no evidence of that in the case. The SCC concluded there was no “communication to the public” in the CCH case.

The parties made various arguments before the SCC. Both the Appellants and the Society relied on the CCH decision as support for their respective positions. The Appellants also argued that the communications should be viewed individually. The Appellants also argued that the music was not being “broadcast” but they were instead relying on technologies that made the music available for the users to access on their own.

The majority concluded that the online streaming services were communications to the public even though they are communications between the online provider and the individual consumer in a point-to-point fashion.

Madam Justice Abella wrote concurring reasons for judgment in respect of the majority’s decision. She did not agree that the applicable standard of review was reasonableness. She says the majority has added a new exception to the standard of review analysis for situations where the courts have concurrent jurisdiction with the tribunal. She stated that the Board was not categorically defining the words “communication” and “to the public”. She stated that parliament seems to have intended for these words to be interpreted contextually in each case.

The SCC allowed the appeal in part. Specifically, the appeal was allowed for downloaded music (this issue is outlined in the SCC’s companion decision at 2012 SCC 34). The appeal was dismissed in respect of online streaming of music subject to copyright. Each party was ordered to bear its own costs.