From:
"Estabrooks,
Matthew"
To: XXXXXXXXXXXXXXXXXX
CC: ,
"Watt, Lynne" ...
Date:
28/11/2012 11:30 am
Subject:
Making Available Right
Dear
Counsel/Tariff 22 Objectors,
We
are writing in connection with the recent coming into force of
several
sections of Bill C‑11 (Copyright Modernization Act) on November
7,
2012. Among those sections is the new
section 2.4(1.1), which reads
as
follows:
2.4(1.1) For the purposes of this Act, communication
of a work or other
subject‑matter
to the public by telecommunication includes making it
available
to the public by telecommunication in a way that allows a
member
of the public to have access to it from a place and at a time
individually
chosen by that member of the public.
It
is SOCAN's position that the new making available right ("MAR")
renders
moot and inapplicable the recent conclusion reached by the
Supreme
Court of Canada in ESA v. SOCAN, 2012 SCC 34, (and the Rogers
companion
case) that the Act's section 3(1)(f) communication right does
not
apply to downloads of musical works.
SOCAN's position is that, as a
result
of new section 2.4(1.1), users of music on the Internet are
liable
to pay communication right royalties to SOCAN when they post
musical
works on their Internet servers in a way that allows access to
them
by their end‑user customers, irrespective of whether the musical
works
are subsequently transmitted to end‑users by way of downloads,
streams
or at all.
We
are aware that a number of objectors take a different position and
the
legal implications of the new MAR will therefore have to be
determined
by the Board. The issue has already been
put "on the table"
as
part of upcoming proceedings for the determination of SOCAN Tariff
22.A
for Online Music Services. However, the
issue is not limited to
Tariff
22.A uses and may be relevant to Objectors to the other
components
of Tariff 22 as well. For that reason,
we suggest that the
Tariff
22.A procedure on this legal issue be expanded to include all
participants
who may have an interest in its determination.
Our
understanding
is that a number of Objectors would be amenable to
proceeding
in that manner.
In
SOCAN's view, this is a pure legal issue that can and should be
determined
by the Board without the need of interrogatories and/or the
presentation
of new evidence, with the following steps:
No
later than Friday, December 21:
Filing of Legal Brief by SOCAN
No
later than Friday, February 1:
Filing of Legal Briefs by
Objectors
No
later than Friday, February 15:
Filing of Reply by SOCAN
Date
to be determined for oral arguments, if deemed necessary.
We
look forward to hearing your response to
SOCAN's proposal as soon as
possible.
Matthew
Estabrooks
Associate
T
613‑786‑0211
________________________________
Gowling
Lafleur Henderson LLP
Lawyers
* Patent and Trade‑mark Agents
160
Elgin Street, Suite 2600
Ottawa,
Ontario
K1P
1C3 Canada
T
613‑233‑1781 F 613‑563‑9869
gowlings.com
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