Citation Edit

Canadian Ass’n of Internet Providers v. Soc’y of Composers Authors and Music Publishers of Canada, 2004 SCC 45 (full-text).

Canadian Supreme Court Proceedings Edit

Canadian copyright law requires those who communicate copyrighted music to the public to pay royalties, at rates set by the Copyright Board. The Supreme Court agreed with SOCAN that when music is transmitted over the Internet, it is communicated by those who upload it to those who download it. What’s more, the Supreme Court also agreed with SOCAN that Canadian copyright law applies when music is downloaded to a computer in Canada, even when the music was uploaded from a server located outside of Canada.

On the other hand, the Canadian Copyright Act also provides that those who merely provide “the means” that are necessary for communication are not themselves communicators. Thus, ISPs are not communicators — and do not have to pay royalties — if they merely provide “the means” by which their subscribers download music.

Judge Binnie noted that this interpretation of Canadian copyright law is consistent with the WIPO Copyright Treaty. The Agreed Statements to that Treaty provide that “It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention.”

SOCAN had hoped to persuade the Supreme Court that ISPs themselves communicate music, because ISPs often “cache” material downloaded by their subscribers. That is, ISPs often save — on their own servers — materials their subscribers have downloaded. ISPs do this, in order to speed up delivery of that material when it is requested again, later, by other subscribers.

The Supreme Court was not persuaded, however. Judge Binnie reasoned that “The creation of a ‘cache’ copy is a serendipitous consequence of improvements in Internet technology, . . . and . . . ought not to have any legal bearing on the communication between the content provider and the end user. ‘Caching’ is dictated by the need to deliver faster and more economic service, and should not, when undertaken only for such technical reasons, attract copyright liability. . . .”

Judge Binnie said that the outcome of the case was not based on a “loophole.” Instead, it was based on “an important element of the balance struck by the statutory scheme.” He explained that: “Parliament made a policy distinction between those who abuse the Internet to obtain ‘cheap music’ and those who are part of the infrastructure of the Internet itself. It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth.”

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