Canadian Association of Broadcasters v. Society of Composers, Authors and Music Publishers of Canada
A-3-94
Létourneau J.A.
24/10/94
11 pp.
Application for judicial review of Copyright Board decision in respect of commercial television public performance royalties -- Respondent filing statement of royalties proposing to collect for licences for public performance of musical works pursuant to Copyright Act, s. 67 for 1993 -- Tariff 2.A.1 seeking royalties from Canadian commercial television broadcasters for public performance of music used in television programming -- Tariff contemplating blanket licence for all use of respondent's musical works, with royalties calculated as 2.1% of each broadcaster's annual advertising revenues -- Applicant objecting rate too high, percentage of revenue formula along with blanket tariff format inappropriate -- Board certifying respondent's statements of royalties as approved -- Applicant submitting Board (1) erred in law by holding Act, s. 28.01 permitting cable operators to retransmit local broadcast television signals without infringing respondent's performing rights; (2) exceeded or failed to exercise its jurisdiction by relying on earlier ruling of Copyright Appeal Board, and failing to consider record before it; (3) exceeded its jurisdiction in refusing to certify fair, reasonable approximation of market price had there been freely functioning market in performing rights; (4) exceeded its jurisdiction by protecting copyright owners from free market forces; (5) erred in law, improperly fettered discretion in refusing to consider merits of any evidence as to comparable royalty rates in United States -- S. 28.01(2) providing not infringement of copyright to communicate to public any musical work if communication retransmission of local or distant signal -- Application dismissed -- No merit to second, fifth submissions -- Board's conclusion Canadian and American markets having different price structures neither unreasonable nor unsupported by evidence -- Based on record, Board concluding changes since 1986 not significant enough to justify reduction in rate or change in approach to fixing tariff -- Not improper to use reasoning followed in earlier ruling -- Board acknowledging study focusing on individual programs (analysis of degree to which music performance patterns consistent with revenue patterns, royalties), but choosing tariff formula based on station's total programming -- Choice within Board's jurisdiction, area of expertise, requiring judicial deference -- No valid ground for review of third and fourth issues relating to Board's mandate under Act -- Board's mandate to set tariffs for use of musical work having reasonable, suitable or rational basis -- While fair and reasonable approximation of market price rational basis for setting tariff, within Board's jurisdiction to reject it -- Board properly stating function to regulate balance of market power between copyright owners and users -- As Board in better position than Court to strike proper balance between interests of copyright owners and users, Court will not interfere unless result reached patently unreasonable -- Applicant not establishing Board acting unreasonably or exceeding jurisdiction in deciding inappropriate in Canadian context to let market forces play -- Board erred in law in deciding for 1990 until amendment to definition of "musical work" in 1993, exemption from liability for copyright infringement in s. 28.01(2) applied to cable operators who communicate musical works by retransmission of local signals -- Prior to amendment, Court interpreting s. 3(1)(f) so that cable operators, television stations when broadcasting not communicating, but performing, musical works -- Same words in s. 28.01 must be given same meaning -- Error not material to decision -- Board referring to s. 28.01(2) as additional, but unnecessary reason to dismiss applicant's contention cable operators should be held jointly liable with applicant for copyright infringement and should have to assume that part of applicant's liability relating to cable retransmission -- Copyright Act, R.S.C., 1985, c. C-42, ss. 3(1)(f) (as am. by S.C. 1988, c. 65, s. 62), 28.01 (as enacted idem, s. 64), 67 (as am. by R.S.C., 1985 (4th Supp.), c. 10, s. 12; S.C. 1993, c. 23, s. 4), 67.2 (as enacted by R.S.C., 1985 (4th Supp.), c. 10, s. 12; S.C. 1993, c. 23, s. 4).