Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. 2012 SCC 35
Administrative Law - Judicial review - General - Scope or standard of review
The Society of Composers, Authors and Music Publishers of Canada applied for a tariff with respect to the performance and communication of musical works on, or by means of, the Internet. The Copyright Board found that the transmission of a musical work to an individual by an online music service (downloads or streams) was a communication of that work to the public by telecommunication within the meaning of s. 3(1)(f) of the Copyright Act and thus were the proper subject for a tariff. Online music services et al. applied for judicial review.
The Federal Court of Appeal, in a decision reported (2010), 409 N.R. 102, dismissed the applications. The online music services appealed, the sole issue being the meaning of the phrase “to the public” in s. 3(1)(f) of the Copyright Act as it related to streaming of music by the music services. A stream was defined as a transmission of data that allowed the user to listen to or view the content transmitted at the time of the transmission, resulting only in a temporary copy of the file on the user’s hard drive.
The Supreme Court of Canada first discussed the standard of review where the court and the Copyright Board had concurrent jurisdiction at first instance in interpreting the Copyright Act. The court held that that concurrent jurisdiction rebutted the presumption of reasonablness review of the Board’s decisions on questions of law under its home statute. Therefore, the standard of correctness was the appropriate standard of review on questions of law arising on judicial review from the Copyright Board. The court determined that the issue here was a pure question of law. The court thereafter considered the appeal on the merits. The court dismissed the appeal with respect to music streamed from the Internet by the music services. The court allowed appeal in respect of downloads for the reasons set out by the majority in the companion case Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34. Abella, J., concurred in the result, but opined that the majority’s conclusion about how to approach the standard of review where there was shared jurisdiction overcomplicated what should have been be a straight forward application of the reasonableness standard.