A-277-79
Curly Posen and Motion Picture Theatres Asso
ciation of Canada (Applicants)
v.
Minister of Consumer and Corporate Affairs
Canada (Respondent)
Court of Appeal, Heald and Urie JJ. and Kelly
D.J.—Toronto, December 3 and 6, 1979.
Judicial review — Decision of Copyright Appeal Board
approving fees, charges or royalties by participating perform
ing rights societies — Applicants seek revision of tariff so as
not to include rights in respect of musical works incorporated
into films — Copyright Appeal Board is without jurisdiction
to grant relief sought — Sole function of Board is to fix rates
and not to adjudicate upon contractual rights between parties
claiming interest in rights — Application dismissed — Copy
right Act, R.S.C. 1970, c. C-30, ss. 48, 49, 50.
APPLICATION for judicial review.
COUNSEL:
J. D. Wilson for applicants.
No one appearing for respondent.
J. Sexton, Q.C. for Composers, Authors and
Publishers Association of Canada Limited.
G. Hynna and R. R. Hahn for Performing
Rights Organization of Canada Limited.
SOLICITORS:
Lang, Michener, Cranston, Farquharson &
Wright, Toronto, for applicants.
Osler, Hoskin & Harcourt, Toronto, for
Composers, Authors and Publishers Associa
tion of Canada Limited.
Gowling & Henderson, Ottawa, for Perform
ing Rights Organization of Canada Limited.
The following are the reasons for judgment
delivered in English by
HEALD J.: This is a section 28 application to
review and set aside the decision of the Copyright
Appeal Board dated April 10, 1979 wherein that
Board approved without alteration and transmitted
to the Minister of Consumer and Corporate
Affairs, pursuant to section 50(8) of the Copyright
Act, R.S.C. 1970, c. C-30, a statement of the fees,
charges or royalties which may be collected by the
participant Composers, Authors and Publishers
Association of Canada Limited (CAPAC) and
also a statement of the fees, charges or royalties
which may be collected by the participant Per
forming Rights Organization of Canada Limited
(PROCAN) for the calendar year 1979. The
applicants also ask this Court to direct the Board
to revise each of the said statements so that they
will not include any right in respect of musical
works incorporated into films and to republish the
statements so revised in the Canada Gazette pur
suant to said section 50. The applicant Posen owns
and operates motion picture theatres in Ontario
while the applicant Motion Picture Theatres Asso
ciation of Canada (MPTA) is a corporation repre
senting the interest of motion picture exhibitors of
feature films throughout Canada. The participants
CAPAC and PROCAN are performing rights
societies. The tariffs of CAPAC and PROCAN
here in issue are in respect of licences for the
performance in Canada of their musical works in
motion picture theatres, covering the operations at
all times during the year, with certain exceptions.
It is the submission of the applicants that
CAPAC and PROCAN do not have the legal right
to collect a tariff for the performance of their
musical works when they are incorporated into a
motion picture (sometimes called a "cinemato-
graph" or "film").
This submission was extensively argued both
before the Board and before this Court and the
Board, in its reasons, dealt at some length with the
submissions and thereafter rejected the submission
and approved the tariff items of CAPAC and
PROCAN without change.
In view of the conclusion which I have reached,
it becomes unnecessary to express any view as to
whether or not the Board erred in law in rejecting
the applicants' submissions since I have concluded
that the Copyright Appeal Board is without juris
diction to grant the relief asked for by these
applicants.
Sections 48 to 50 of the Copyright Act
(attached to these reasons as Appendix I) establish
a regulatory scheme for controlling the fees
chargeable by performing rights societies for the
issue of licences to use their music. Section 48(1)
requires the societies to file lists of works in their
repertoire with the Minister of Consumer and
Corporate Affairs. Section 48(2) requires the
societies to file annually with the Minister a state
ment of the fees proposed to be charged for that
year. Section 49 requires the Minister to publish
these statements in the Canada Gazette and then
refer the statements together with any objections
received to the Copyright Appeal Board. Section
50 establishes the Copyright Appeal Board. Sub
section (6) of section 50 requires the Board to
consider the statements and any objections thereto,
after giving the performing rights societies an op
portunity to reply to the objections. Subsection (8)
authorizes the Board, at the conclusion of its con
sideration to make "such alterations in the state
ments as it may think fit" and to then transmit the
statements thus altered or revised or unchanged to
the Minister certified as the approved statements.
The Minister is thereupon required to publish the
statements in the Canada Gazette and furnish the
parties concerned with a copy thereof.
In my view, the sole function of the Board is to
fix the rates which the performing rights societies
can charge. The Board does not have jurisdiction
to decide questions respecting ownership, as be
tween various parties, of the performing rights in
works which have been filed with the Minister
under section 48(1).
It is the position of the applicant MPTA that
the compensation paid by its members to the dis
tributors of motion pictures gives it the right to
publicly perform the various copyrighted works
making up the film. The participants, on the other
hand, submit that the Copyright Act provides for a
separate copyright in musical works that is
independent from the copyright that exists in the
physical object that embodies the musical work
and further gives to the owner of a copyright in a
musical work the sole right to make any record,
cinematograph, film, or other contrivance, by
means of which the work may be mechanically
performed or delivered. In support of this submis
sion, the participants rely on various provisions of
the Canadian Copyright Act and submit that
under our Act, the synchronization of a dramatico-
musical or musical work with a motion picture
film does not extinguish the right of the owner of
the performing right in the original dramatico-
musical or musical work to own or control the
performance or public presentation of the work in
conjunction with the film. Thus, the answer to this
rather complex question, necessarily involves a
careful and detailed examination of difficult ques
tions of law. In my view, it is clear that Parliament
never intended, in setting up the Copyright Appeal
Board as a regulatory agency for rate-fixing that
the Board also would have the power to adjudicate
upon contractual rights between parties claiming
an interest in performing rights. The Board sets
the rates. The societies must still establish their
legal right to collect the tariff and if a user con
tests that right, then the Courts are the proper
forum for a determination of the rights of the
respective parties, not the Board.
With respect, I do not think the Board had any
jurisdiction to inquire into the matters raised
before it by the applicants since the applicants did
not contest the quantum of the tariffs either before
the Board or at the hearing before us. In my view,
that should have been an end of the matter since
the quantum of the rates is the only matter en
trusted to the Board by the statute.
For these reasons I would dismiss the section 28
application.
* * *
URIE J.: I concur.
* * *
KELLY D.J.: I concur.
APPENDIX I
PERFORMING RIGHTS SOCIETIES
48. (1) Each society, association or company that carries on
in Canada the business of acquiring copyrights of dramatico-
musical or musical works or of performing rights therein, and
deals with or in the issue or grant of licences for the perform-
ance in Canada of dramatico-musical or musical works in
which copyright subsists, shall, from time to time, file with the
Minister at the Copyright Office lists of all dramatico-musical
and musical works, in current use in respect of which such
society, association or company has authority to issue or grant
performing licences or to collect fees, charges or royalties for or
in respect of the performance of its works in Canada.
(2) Each such society, association or company shall, on or
before the 1st day of November in each and every year, file,
with the Minister at the Copyright Office statements of all fees,
charges or royalties which such society, association or company
proposes during the next ensuing calendar year to collect in
compensation for the issue or grant of licences for or in respect
of the performance of its works in Canada.
(3) Where any such society, association or company refuses
or neglects to file with the Minister at the Copyright Office the
statement or statements prescribed by subsection (2), no action
or other proceeding to enforce any civil or summary remedy for
infringement of the performing right in any dramatico-musical
or musical work claimed by any such association, society or
company shall be commenced or continued, unless the consent
of the Minister is given in writing.
49. (1) As soon as practicable after the receipt of the state
ments prescribed by subsection 48(2), the Minister shall pub
lish them in the Canada Gazette and shall notify that any
person having any objection to the proposals contained in the
statements must lodge particulars in writing of his objection
with the Minister at the Copyright Office on or before a day to
be fixed in the notice, not being earlier than twenty one days
after the date of publication in the Canada Gazette of such
notice.
(2) As soon as practicable after the date fixed in the notice
referred to in subsection (1), the Minister shall refer the
statements and any objection received in response to the notice
to a Board to be known as the Copyright Appeal Board.
50. (1) The Copyright Appeal Board shall consist of three
members, who shall be appointed by the Governor in Council.
(2) One of the members of the Copyright Appeal Board
shall be a person who holds or has held high judicial office and
he shall be the Chairman of the Board; the other two members
of the Board shall be selected from officers of the public service
of Canada.
(3) No fees or emoluments of any kind shall be payable to,
or received by, any member of the Board in connection with
services rendered as such member, but the members shall be
paid actual travelling and living expenses necessarily incurred
in connection with the business of the Board.
(4) Subject to this Act, the Copyright Appeal Board may
make rules and provisions respecting
(a) the sittings of the Board;
(b) the manner of dealing with matters and business before
the Board; and
(c) generally, the carrying on of the work of the Board and
the management of its internal affairs.
(5) The Copyright Appeal Board may call to its aid in an
advisory capacity the services of any person having technical or
special knowledge of the matters in question before it and may
pay such person such fees or other remuneration and actual
travelling and living expenses as may be approved by the
Minister.
(6) As soon as practicable after the Minister has referred to
the Copyright Appeal Board the statements of proposed fees,
charges or royalties as herein provided and the objections, if
any, received in respect thereto, the Board shall proceed to
consider the statements and the objections, if any, and may
itself, notwithstanding that no objection has been lodged, take
notice of any matter that in its opinion is one for objection; the
Board shall, in respect of every objection, advise the society,
association or company concerned of the nature of the objection
and shall afford it an opportunity of replying thereto.
(7) In respect of public performances by means of any radio
receiving set or gramophone in any place other than a theatre
that is ordinarily and regularly used for entertainments to
which an admission charge is made, no fees, charges or royal
ties shall be collectable from the owner or user of the radio
receiving set or gramophone, but the Copyright Appeal Board
shall, so far as possible, provide for the collection in advance
from radio broadcasting stations or gramophone manufactur
ers, as the case may be, of fees, charges and royalties appropri
ate to the new conditions produced by the provisions of this
subsection and shall fix the amount of the same; in so doing the
Board shall take into account all expenses of collection and
other outlays, if any, saved or savable by, for or on behalf of the
owner of the copyright or performing right concerned or his
agents, in consequence of this subsection.
(8) Upon the conclusion of its consideration, the Copyright
Appeal Board shall make such alterations in the statements as
it may think fit and shall transmit the statements thus altered
or revised or unchanged to the Minister certified as the
approved statements; the Minister shall thereupon as soon as
practicable after the receipt of such statements so certified
publish them in the Canada Gazette and furnish the society,
association or company concerned with a copy of them.
(9) The statements of fees, charges or royalties so certified
as approved by the Copyright Appeal Board shall be the fees,
charges or royalties which the society, association or company
concerned may respectively lawfully sue for or collect in respect
of the issue or grant by it of licences for the performance of all
or any of its works in Canada during the ensuing calendar year
in respect of which the statements were filed as aforesaid.
(10) No such society, association or company shall have any
right of action or any right to enforce any civil or summary
remedy for infringement of the performing right in any
dramatico-musical or musical work claimed by any such socie
ty, association or company against any person who has tendered
or paid to such society, association or company the fees,
charges or royalties that have been approved as aforesaid.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.