On Friday, June 5th, the Federal Court of appeal rendered two significant decisions regarding provisions of the Copyright Act.
First, in ESA v. SOCAN et al (2020 FCA 100), the Federal Court of Appeal reviewed the Copyright Board’s decision on the scope and meaning of the “making available” provision at p. 2.4(1.1) of the Copyright Act which was added by the Copyright Modernization Act in 2012. This provision entitled SOCAN to collect royalties when copies of musical works are downloaded.
The Federal Court of Appeal has overturned the Copyright Board’s interpretation of the Copyright Act’s “making available” provision in a strongly-worded rebuke of the Board’s approach to statutory interpretation and the role of international treaties in understanding domestic legislation. Among other things, the Federal Court suggests the Board skewed its interpretation to get desired result.
The Federal Court of Appeal also issued its decision on another set of judicial review applications arising from the Copyright Board’s Online Music Services decision which set the rates payable by music services and was a companion decision to the making available decision.
In joint reasons dealing with both CMRRA v. Apple et al and SOCAN v. Apple et al (2020 FCA 101), the Court upheld the Board’s decision to lower the royalties paid for on-demand streaming that were the result of a different valuation methodology.
The Court’s decision reinforced the considerable amount of deference that Court will give the Board when it is exercising its core rate-setting function. The Court said “the Board has just about the widest discretion know to law” when setting rates.
A Fasken team comprised of Jay Kerr-Wilson and Stacey Smydo acting for Entertainment Software Association, Entertainment Software Association of Canada, Bell Canada, Google, Quebecor Media Inc., Rogers Communications, and Shaw Communications in the ESA matter and for Bell Canada and Spotify in the online music decision, secured these important victories.