Entertainment Software Association et al. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 34
Copyright - General - Copyright defined (incl. extent of copyright)
The Society of Composers, Authors and Music Publishers of Canada (SOCAN), which administered the right to “communicate” musical works on behalf of copyright owners, applied for a tariff under s. 3(1)(f) of the Copyright Act to cover downloads of musical works over the Internet. The Entertainment Software Association and the Entertainment Software Association of Canada (collectively, ESA), which represented a broad coalition of video game publishers and distributors, objected to the tariff, arguing that “downloading” a video game containing musical works did not amount to “communicating” that game to the public by telecommunication under s. 3(1)(f). The Copyright Board allowed SOCAN’s application, holding that video games containing a musical work, the royalties to which had already been negotiated with the copyright owner, were nonetheless subject to a new fee when sold over the internet. The ESA applied for judicial review. The ESA raised four issues, one of which the court disposed of in a companion decision (see (2010), 409 N.R. 102). The following issues remained to be decided: (1) did the Board err in finding that video game sites were subject to a tariff respecting the communication of musical works to the public, given the minor role which music played in video games; (2) did the Board err in certifying a tariff when the Society of Composers, Authors and Music Publishers of Canada failed to present adequate evidence to justify the reasonableness of the tariff it proposed; and (3) did the Board err in failing to consider the evidence of the contractual agreements between ESA members and music creators, in failing to properly weigh that evidence, and in failing to provide adequate reasons for failing to consider that evidence.
The Federal Court of Appeal, in a decision reported at 406 N.R. 288, held that, other than a failure to provide adequate reasons on a discrete issue, the Board had not erred. The court declined to remit the matter to the Board and dismissed the application. ESA appealed.
The Supreme Court of Canada, Lebel, Fish, Rothstein and Cromwell, JJ., dissenting, allowed the appeal.