Digests

Copyright

Judicial review of Copyright Board decision concerning tariff liability of Internet game sites—Board holding inter alia that transmission of games over Internet involving transmission of music in games, no de minimis rule according to which a tariff only certified if a certain threshold of musical content reached, nature of respondent’s regime precluding possibility that compensation for rights holders may be dealt with by contracts between respondent, music users—Issues whether Board erring (1) in finding video game sites subject to tariff for communicating musical works given music’s minor role in video games, (2) in certifying tariff despite lack of adequate evidence to justify reasonableness of proposed tariff, (3) in failing to consider, weigh evidence of contractual agreements between applicants, music creators—Act, ss. 19(2), 67.1(4) clearly indicating compensation mechanism for performance, communication of sound recording by way of telecommunication enforcement of approved tariffs—Without tariffs, no right to compensation—Such regime not lending itself to a de minimis rule—With regard to tariff’s fair, equitable character, collective administration regime depending upon tariff certification—Such system seeking to balance rights of creators, users—Cannot be hobbled by overly rigid approach to assessment of basis upon which tariff certified—With regard to inadequacy of Board’s reasons for not considering particular evidence, Court not inclined to return matter to Board for better reasons on such discrete issue—Matters pending since 1996, interest of finality substantial, little advantage in sending back a matter where decision’s reasonableness apparent on its face—Application dismissed.

Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada (A-521-07, 2010 FCA 221, Pelletier J.A., judgment dated September 2, 2010, 10 pp.)