Julia Marie Williams Kennedy

In a copyright tariff appeal concerning online music services, the Court addressed whether on-demand transmissions over the Internet constitute communication to the public by telecommunication under the Copyright Act.

The Court held that individual user-initiated streaming transmissions are not private in character when viewed as repeated transmissions to members of the public, and therefore remain within the communication right.

In light of the companion ruling on downloads, the download issue was moot and the appeal succeeded only to that extent.

The Court further held that correctness applied to the legal question under the statutory scheme, while a concurrence preferred reasonableness deference to the specialized tribunal.

The appeal concerned whether online music previews streamed before purchase are fair dealing for the purpose of research under the Copyright Act.

The Court held that research must be interpreted broadly and assessed from the user perspective, not only from the service provider perspective.

Applying the CCH framework, the Court found the previews fair in purpose, character, amount, alternatives, nature of the work, and market effect.

Because the previews were short, lower quality, temporary, and supported consumer selection without substituting for purchases, no additional royalties were payable for them.

In a copyright appeal, the Court considered whether pre-existing sound recordings embedded in film and television soundtracks remain subject to equitable remuneration under s. 19 of the Copyright Act when the soundtrack accompanies a cinematographic work.

Applying modern statutory interpretation, the Court held that the soundtrack exclusion in the definition of sound recording captures pre-existing recordings in that context.

The Court found this reading consistent with the legislative scheme, parliamentary intent, and international obligations under the Rome Convention.

As a result, the proposed tariffs could not be certified for performances or communications of recordings when accompanying cinematographic works.