[2016] 2 F.C.R. D-5
Copyright
Practice
Judicial review of Copyright Board decision dated July 18, 2014 certifying tariff of royalties for audiovisual webcasts (Tariff 22.D.1 or Tariff) — Applicant, online streaming service delivering movies, television programs, challenging Tariff, paragraph 3(b) establishing monthly minimal fee for free trials of subscription services — Respondent Society of Composers, Authors and Music Publishers of Canada (SOCAN), copyright collective society within the meaning of Copyright Act, R.S.C., 1985, c. C-42, s. 2, entitled to receive copyright royalties pursuant to tariffs certified by Board — From 2007 to 2013, SOCAN filing annual statements of proposed royalties (tariffs) for audiovisual works transmitted online — Proposed tariffs published annually in Canada Gazette, royalties calculated as percentage of revenue or expense without specific provisions for subscription services or free trials thereof — Applicant never objecting to these proposed tariffs — SOCAN, other respondents (Objectors) later entering into agreement containing royalty provisions substantially different from those in previously published versions of Tariff 22.D.1, including, in case of free trials, minimum monthly fee — No Objector affected by new separate royalty calculation for subscriptions or by extra royalties for free trials — SOCAN then filing request on behalf of signatories for certification of new proposed Tariff (Settlement Tariff) — Board inviting SOCAN, Objectors to submit written submissions regarding Settlement Tariff — As applicant not party to proceedings, not invited by Board to participate in this process — Board later allowing applicant to participate — However, Board making it clear parties expected to address only issues already raised — Applicant seeking leave, inter alia, to provide limited, targeted information pertaining to argument free trial constituting fair dealing — Board dismissing application for leave, eventually certifying proposed Settlement Tariff, including provisions for extra royalties for free trials challenged by applicant — Issue whether process pursuant to which Board certifying Tariff procedurally fair — Board relying on applicant’s failure to participate in opposition process to justify refusal to allow applicant to introduce new evidence, make submissions with respect to fair dealing issue — Although applicant itself not having right to be heard, industry affected by provision at issue enjoying that right, should have opportunity to be heard, put its case forward — Tariffs certified by Board are of general application, interests to be considered those of industry as opposed to those of individual or entity — Furthermore, Act, s. 67.1 establishing opposition mechanism allowing affected parties to be heard — That right cannot be lost or denied whenever Board certifying tariff containing subject matter not appearing in tariff publicly advertised — Relevant evidence not before Board because Board refusing to allow it in — Board thus erring in certifying Tariff provisions — Procedural fairness requiring Board to allow applicant, if applicant representative member of affected industry, opportunity to fully make its case, introduce fresh evidence, submit new arguments on subject matters not included in proposed Tariff published in Canada Gazette — Application allowed.
Netflix, Inc. v. Society of Composers, Authors and Music Publishers of Canada (A-369-14, 2015 FCA 289, Nadon J.A., reasons for judgment dated December 17, 2015, 16 pp.)