Judgments

[1993] 2 F.C. 115

A-340-90

Performing Rights Organization of Canada Limited and Composers, Authors and Publishers Association of Canada Limited (Appellants) (Respondents)

v.

CTV Television Network Ltd. (Respondent) (Applicant)

and

The Copyright Board (Respondent) (Respondent)

Indexed as: CTV Television Network Ltd. v. Canada (Copyright Board) (C.A.)

Court of Appeal, Heald, Desjardins and Létourneau JJ.A. — Toronto, December 7, 8, 9 and 10, 1992; Ottawa, January 5, 1993.

Copyright — Appeal from Trial Division decision prohibiting Copyright Board from proceeding with adoption of tariff covering royalties to be paid to performing rights societies — Jurisdiction of Board at issue — Whether proposed tariff applicable to CTV’s distribution network under Copyright Act, s. 3(1)(f) as amended — Meaning of “musical work”  — Amendments to Copyright Act not intended to overcome case law and subject entertainment programming networks to payment of royalties — CTV communicating performance of musical works, not musical works — Not performing musical works in public under s. 3(1)(f) — No legal basis for appellants to file statement of royalties.

Telecommunications — Copyright Act, s. 3(1)(f) amended to replace “by radio communication” with “by telecommunication” — Whether CTV communicates musical works to public by telecommunication within meaning of s. 3(1)(f)  — “Musical work” not including “composition with or without words” — Meaning of “musical work” established by case law unchanged by amendments to legislation — CTV communicating “performance of musical works”, not “musical works” — Not performing musical works in public when transmitting entertainment programming to affiliated stations.

This was an appeal from a decision of the Trial Division prohibiting the Copyright Board from proceeding with the adoption of a tariff which would authorize the appellants, as performing rights societies, to claim royalties from commercial television networks under the Copyright Act; there was also a cross-appeal by the Board as to its jurisdiction to deal with the proposed tariff and legal issues relating to it. The respondent CTV is a privately owned network which provides entertainment programming to its affiliated stations across Canada. In 1968, the Supreme Court of Canada held in the CAPAC case that paragraph 3(1)(f) of the Copyright Act, as it was then written, did not provide copyright protection for musical works with respect to CTV’s network transmissions. In 1988, that paragraph was amended to replace the words “by radio communication” with “to the public by telecommunication”. The issues in this appeal were 1) whether the Board had the capacity to consider Tariff 2.A.2 submitted by the appellants and to decide jurisdictional questions and questions of law and 2) whether the performing rights in musical works administered by the appellants are protected under the Copyright Act in respect of CTV’s distribution network and therefore could provide a statutory foundation for Tariff 2.A.2.

Held, the appeal and the cross-appeal should be dismissed.

1) The Copyright Board possesses the incidental powers necessary to the exercise of its function which consists in fixing the rates that the performing rights societies can charge. This may entail deciding preliminary or collateral issues and questions of fact or of law. The powers of any administrative tribunal must be stated in its enabling statute but may also exist by necessary implication from the wording of the act, its structure and purpose. Courts must avoid sterilizing the powers of regulatory authorities through overly technical interpretations of enabling statutes. The Copyright Board can make an initial determination of the facts and the law as to whether the proposed statement of royalties is within the terms of the Act. On an application for prohibition, a court should be loath to prevent the Board from making the initial determination on matters incidental to its jurisdiction and to frustrate Parliament’s intention in establishing a regulating body.

2) In relation to musical, literary, dramatic or artistic work, “copyright” includes under paragraph 3(1)(f) of the Copyright Act the sole right to communicate the work to the public by telecommunication. In the CAPAC case, the Supreme Court of Canada ruled that CTV, by transmitting its entertainment programming to its affiliate stations, communicated not a “musical work” as defined in the Act but “a performance of the work”. In an attempt to distinguish the CAPAC case, the appellants sought to extend the meaning of “musical work” and submitted that the words “musical work” and “musical composition” can be used interchangeably. That proposition defies the basic rules of legislative drafting and interpretation. Definitions are used for convenience and to bring more precision to a legislative text. They are meant to be of assistance to legislative drafting, not to bring confusion to legislative interpretation. The definition of the words “every original literary, dramatic, musical and artistic work” in section 2 of the Act makes it obvious that “musical work” is not meant to include “composition with or without words” as the legislator opposes the two notions in that definition. As the definitions of “musical works” and “performance” have remained unchanged, the Court was bound by the decision of the Supreme Court in CAPAC that paragraph 3(1)(f) covers the communication of musical works to the public, not the communication of the performance of musical works; that paragraph should have been amended accordingly in order to cover the acts of CTV. The amendments to paragraph 3(1)(f) were not intended to reverse the decision of the Supreme Court and to subject entertainment programming networks to the payment of royalties; they were enacted to implement the Free Trade Agreement with respect to the retransmission of local or distant signals that carry a literary, dramatic, musical or artistic work. CTV is not a retransmitter within the meaning of the Copyright Act and therefore is not affected by these amendments. Paragraph 3(1)(f) does not apply to CTV’s network as the latter does not communicate musical works per se; rather, it communicates the performance of musical works.

CTV is not performing musical works in public when it transmits its entertainment programming to its affiliated stations. That question of the public or private nature of CTV’s action was before the Supreme Court in the CAPAC case where the transmission was held to be private, not public. The factual and legal situation has not changed since that decision and the fact that transmission by electrical signals or data streams has replaced transmission by microwaves does not change the private character of such transmission. CTV does not broadcast to the public when it transmits its programming to its affiliated stations as such transmission does not meet the definition of broadcasting in the Broadcasting Act. CTV, through its programming activities and its distribution network, facilitates the work of the affiliated stations but does not authorize it. The authorization given to its affiliated stations to broadcast musical works comes from the appellants themselves. The appellants had no legal basis, statutory or otherwise, to file a statement of royalties that applies to CTV’s entertainment programming network.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Copyright Act and to amend other Acts in consequence thereof, S.C. 1988, c. 15, s. 1.

Broadcasting Act, S.C. 1991, c. 11, s. 2.

Canada—United States Free Trade Agreement Implementation Act, Bill C-2, First Reading, ss. 61, 62.

Canada—United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 61-65.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act

1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Copyright Act, R.S.C. 1952, c. 55, ss. 3(1)(f), 49.1 (as enacted by S.C. 1988, c. 15, s. 12), 50, 50.1 to 50.4 (as enacted idem, s. 14).

Copyright Act, R.S.C., 1985, c. C-42, ss. 2 (as enacted by S.C. 1988, c. 65, s. 61), 3(1)(f) (as am. idem, s. 62), 3 (1.4) (as enacted idem), 5, 28, 66.52 (as am. idem, s. 64), 67 to 67.3 (as enacted by R.S.C., 1985 (4th Supp.), c. 10, s. 12), 70.1-70.2 (as enacted idem, s. 16), 70.61 (as enacted by S.C. 1988, c. 65, s. 65 ).

Federal Court Act, R.S.C., 1985, c. F-7, s. 28(1)(j) (as am. by S.C. 1990, c. 8, s. 8).

Free Trade Agreement, S.C. 1988, c. 65, Schedule, Part A, Art. 2006(2)(a).

Integrated Circuit Topography Act, S.C. 1990, c. 37, s. 33.

Rome Copyright Convention, 1928, R.S.C., 1985, c. C-42, Schedule III, Art. 11 (bis).

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Composers, Authors and Publishers Assoc. of Canada Limited v. CTV Television Network Limited et al., [1968] S.C.R. 676; (1968), 68 D.L.R. (2d) 98; 55 C.P.R. 132; 38 Fox Pat. C. 108.

APPLIED:

Posen v. Minister of Consumer and Corporate Affairs Canada, [1980] 2 F.C. 259; (1979), 46 C.P.R. (2d) 63; 36 N.R. 572 (C.A.); FWS Joint Sports Claimants v. Canada (Copyright Board), [1992] 1 F.C. 487; (1991), 81 D.L.R. (4th) 412; 36 C.P.R. (3d) 483; 129 N.R. 289 (C.A.); Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 1 S.C.R. 1722; (1989), 60 D.L.R. (4th) 682; 97 N.R. 15; Canadian Cable Television Assn. v. Canada (Copyright Board) (1991), 34 C.P.R. (3d) 521; 41 F.T.R. 1 (F.C.T.D.).

REFERRED TO:

Canadian Cable Television Assn. v. American College Sports Collective of Canada, Inc., [1991] 3 F.C. 626; (1991), 81 D.L.R. (4th) 376; 4 Admin. L.R. (2d) 61; 36 C.P.R. (3d) 455; 129 N.R. 296 (C.A.); Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 50 Admin. L.R. 1; 36 C.C.E.L. 117; 91 CLLC 14,023; 4 C.R.R. (2d) 12; 126 N.R. 1; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; (1990), 77 D.L.R. (4th) 94; [1991] 1 W.W.R. 643; 52 B.C.L.R. (2d) 68; 91 CLLC 17,002; 118 N.R. 340; Performing Rights Organization of Canada Ltd. v. CTV Television Network Ltd., A-329-90, Létourneau J.A., judgment dated 5/1/93, F.C.A., not yet reported.

AUTHORS CITED

Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed., Cowansville (Quebec): Les Éditions Yvon Blais Inc., 1991.

Tremblay, Richard et al.. Guide de rédaction législative, Montréal: Société québécoise d’information juridique, 1984.

APPEAL from a decision of the Trial Division ([1990] 3 F.C. 489; (1990), 30 C.P.R. (3d) 262; 34 F.T.R. 142 (T.D.)) prohibiting the Copyright Board from proceeding with the adoption of Tariff 2.A.2 relating to royalties claimed by appellants under the Copyright Act; cross-appeal by the Board as to its jurisdiction to deal with the proposed tariff and legal issues relating to it. Appeal and cross-appeal dismissed.

COUNSEL:

Y. A. George Hynna, C. Paul Spurgeon and Gilles Marc Daigle for appellants (respondents).

Gordon J. Zimmerman and Gayle Pinheiro for respondent (applicant) CTV Television Network Ltd.

Mario Bouchard for respondent (respondent) Copyright Board.

SOLICITORS:

Gowling, Strathy & Henderson, Ottawa, for appellants (respondents).

Borden & Elliot, Toronto, for respondent (applicant) CTV Television Network Ltd.

Legal Services, Copyright Board, Ottawa, for respondent (respondent) Copyright Board.

The following are the reasons for judgment rendered in English by

Létourneau J.A.: This is an appeal from a decision of the Trial Division [[1990] 3 F.C. 489] prohibiting the Copyright Board (the Board) from taking further proceedings with respect to the adoption of appellants’ Tariff 2.A.2 applicable to commercial television networks and relating to royalties to be paid under the Copyright Act [R.S.C., 1985, c. C-42] to performing rights societies.

It also involves a cross-appeal by the Board on the scope of its jurisdiction to deal with the proposed tariff and legal issues relating to it.

The Facts

The appellant Societies, the Performing Rights Organization of Canada Limited (PROCAN) and Composers, Authors and Publishers Association of Canada Limited (CAPAC), are performing rights societies currently in the process of merging. They own and administer the performance rights to a variety of musical works in Canada. The Societies grant licences for the performance of those works in Canada and collect and distribute royalties pursuant to statements of royalties certified by the Board.

The respondent, the CTV Television Network Ltd. (CTV), is a privately owned network which, among other things, provides entertainment programming to its affiliated stations across Canada.

Indeed, the respondent CTV, which describes itself as a “programming cooperative”, distributes programming to its affiliated stations via satellite. The receiving stations then communicate the programs to the public from local broadcasting transmitters.

Under the terms of the agreement between CTV and its affiliated stations, total programming time is divided between “Network Sales Time” (when the affiliates must carry programs as scheduled by the network) and “Affiliate Sales Time” (in which the affiliates run programs of their own choosing). Generally, advertising revenues generated during Network Sales Time are retained by CTV; those generated during Affiliate Sales Time are retained by the affiliate. Affiliates also receive some proportion of the Network Sales Time revenues.[1]

Affiliated stations pay royalties to the performing societies based on a percentage (2.1%) of the gross advertising revenues of each station. According to the appellants, in 1963, the Board approved a royalty, similar to that proposed here, that attached to Network Sales Time revenues. However, in Composers, Authors and Publishers Assoc. of Canada Limited v. CTV Television Network Limited et al. [“CAPAC”], [1968] S.C.R. 676, the Supreme Court of Canada interpreted paragraph 3(1)(f) of the Copyright Act,[2] as it was then written [R.S.C. 1952, c. 55], so as not to provide copyright protection for musical works with respect to CTV’s network transmissions. Thus, CTV’s network advertising revenues have historically escaped the application of royalties.

In 1988, paragraph 3(1)(f) of the Copyright Act was amended to replace the phrase “to communicate the work by radio communication” with “to communicate the work to the public by telecommunication”.[3]

On this basis, pursuant to the then section 49.1 (as enacted by S.C. 1988, c. 15, s. 12) (now sections 67 to 67.3 [as enacted by R.S.C., 1985 (4th Supp.), c. 10, s. 12]) of the Copyright Act, the Societies filed new proposed Tariffs 2.A.1. (pertaining to television stations) and 2.A.2 (pertaining to television networks) with the Board in September 1989. As required by this legislation, the proposed Tariffs (which were to take effect January 1, 1990) were published in the Canada Gazette on September 30, 1989 [123 Canada Gazette, Part 1, Supplement (September 30, 1989)].

Respondent CTV filed formal objections to the proposal with the Board on October 27, 1989. Then, on November 16, 1989, it filed an originating notice of motion in the Federal Court seeking the writ of prohibition which is the subject of the present appeal.

I might add that, in response to the issuing of the writ, on November 24, 1989, the Societies made an additional and alternative filing of the proposed Tariffs under sections 50.1 to 50.4 [as enacted by S.C. 1988, c. 15, s. 14] (now sections 70.1 to 70.2 [as enacted by R.S.C., 1985 (4th Supp.), c. 10, s. 16]) of the Act. Respondent CTV filed another notice of motion on December 18, 1989 again seeking to prohibit the Board from further considering the Tariff 2.A.2 application based on section 50 (now section 70) of the Act. The Trial Judge’s order regarding this motion was released on April 12, 1990 and is the subject of an appeal in file A-329-90 [Performing Rights Organization of Canada Ltd. v. CTV Television Network Ltd., Létourneau J.A., judgment dated 5/1/93, not yet reported].

The Substantive Issues

The appeal primarily involves a determination of the Board’s capacity to consider Tariff 2.A.2 submitted by the appellants along with its capacity to decide jurisdictional questions and questions of law. At the core of the debate also lies the question as to whether the performing rights in musical works administered by the appellants are protected under the Copyright Act in respect of CTV’s distribution network and therefore could provide a statutory foundation for Tariff 2.A.2. A number of arguments were raised in support and against the proposal that they are so protected. An assessment of these arguments would involve a reconsideration of the decision of the Supreme Court of Canada in the CAPAC case. Both the appellants and respondent CTV have urged us to decide the core issue and not simply that relating to the Board’s capacity to deal with it.

The power of the Copyright Board to decide legal and jurisdictional questions

On this matter, counsel for the respondent CTV initially took a very restrictive view of the Board’s jurisdiction and powers and submitted that the Board has no authority to decide legal or jurisdictional questions. I say initially because, in my view rightly so, he made a number of important concessions pursuant to the very able and objective submissions made by Mr. Bouchard on behalf of the Board.

Mr. Bouchard submitted that the Board, in order to be functional, must have the power to initially, though not conclusively, decide questions of law and jurisdiction. If the Board is limited to deciding questions of fact as counsel for the respondent CTV originally proposed, Mr. Bouchard said, one would end up in a ludicrous situation as the Board would have the power to adjudicate on questions of fact, but not on questions of law or of mixed fact and law. However, he adds, the very question of determining whether a matter is a question of fact or of law or a question of a mixed law and fact is itself a question of law on which the Board could not adjudicate. Any debate on the issue would have to be settled before the courts and the Board would simply be paralyzed.

The parties have cited us numerous decisions and authorities on a Board’s capacity to decide Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], jurisdictional and legal issues. It is fair to say that there have been fluctuations over the years and I am not sure there is any point in trying to reconcile the sometimes conflicting views on the matter.

I am satisfied that the Board cannot have a jurisdiction as limited as counsel for the respondent CTV initially put it. Nor is the Board’s jurisdiction unlimited. I firmly believe that the Board possesses the incidental powers which are necessary and inexorably linked to the exercise of its function which is of fixing the rates which the performing rights societies can charge. This may entail deciding preliminary or collateral issues and questions of fact or of law.

This finding is consistent with the decisions of this Court in Posen v. Minister of Consumer and Corporate Affairs Canada[4] and in FWS Joint Sports Claimants v. Canada (Copyright Board).[5] In this latter case, my colleague Linden J.A., in relating to the Copyright Board’s power to decide questions of contractual rights, wrote for the Court:

... it is clear that the Board must do so, at least in a preliminary way, as a necessary incident to the exercise of its jurisdiction. It cannot value a right unless it exists. The Board’s conclusion as to legal rights may not bind everyone for all time, but it cannot perform its mandate without making a legal determination about these rights. It may be different, however, where all that the Board is asked to do is to determine the rights of the parties (see Posen v. Minister of Consumer and Corporate Affairs Canada, [1980] 2 F.C. 259 (C.A.)).[6]

It is also consistent with what Gonthier J., of the Supreme Court of Canada, said in the Bell Canada case:

The powers of any administrative tribunal must of course be stated in its enabling statute but they may also exist by necessary implication from the wording of the act, its structure and its purpose. Although courts must refrain from unduly broadening the powers of such regulatory authorities through judicial law-making, they must also avoid sterilizing these powers through overly technical interpretations of enabling statutes.[7]

It is not necessary in this case to review all the powers of the Board under the Act. Suffice it for me to say that the Board has under section 67 of the Act, in exercising its rate fixing function, the power to make an initial determination as to whether or not the party filing a proposed statement of royalties is entitled to do so, whether or not it is in relation to musical works, i.e., works protected under the Act, and whether or not it is for the grant of licences for the performance of protected works in Canada. To use the words of Strayer J. in Canadian Cable Television Assn. v. Canada (Copyright Board),[8] the Board can make an initial determination of the facts and the law as to whether the proposed statement of royalties is within the terms of the Act.

Otherwise, the Board would have to publish in the Canada Gazette, as required by section 67.1, a statement of royalties which it knows has no legal foundation as it comes from unauthorized persons and relates to unprotected works. What, then, is the purpose of having a Board if it cannot determine these necessary incidents to its jurisdiction?

This is not to say that the Board’s decisions on these matters should not be reviewable by the courts. Indeed, judicial review is available pursuant to section 28 of the Federal Court Act.[9] In addition, as the Board has not expressly been given the power to interpret law and as it does not claim a special expertise, it is not entitled to the curial deference which is generally applied in such cases to the interpretation of a statute within a tribunal’s area of expertise.[10]

Having said that, I hasten to add that, on an application for prohibition, a court should be loath to prevent a board, in this case the Copyright Board, from making the initial determination on matters incidental to its jurisdiction and to frustrate Parliament’s intention in establishing a regulating body. There will be ample opportunities for subsequent judicial review if necessary and the reviewing court will then have the benefit of an initial determination.[11]

At the present stage of these proceedings and in view of the extensive arguments submitted to this Court, I agree with the parties to this appeal that it would not be convenient to send the matter back to the Board for determination. I therefore propose to deal with the other substantive issue involved in this appeal, that is to say whether the proposed Tariff 2.A.2 for royalties payable to the appellants applies to the respondent CTV for its network distribution of entertainment programming.

Whether respondent CTV communicates musical works to the public by telecommunication within the meaning of paragraph 3(1)(f) of the Copyright Act

Broadly stated, section 3 of the Copyright Act defines “copyright” as the sole right to produce, reproduce or publish a work or any substantial part thereof in any material form whatever, or the sole right to perform it in public. In relation to musical, literary, dramatic or artistic work, it also includes under paragraph 3(1)(f) the sole right to communicate the work to the public by telecommunication.

On the basis of paragraph 3(1)(f), the appellants submit that in its transmission of network programming to its affiliated television stations which broadcast the programming to the public, respondent CTV communicates musical works to the public by telecommunication within the meaning of that section and therefore is liable for the payment of royalties to the appellants. The respondent CTV relies on the decision of the Supreme Court of Canada in Composers, Authors and Publishers Assoc. of Canada Limited v. CTV Television Network Limited et al.[12] [“CAPAC”] which, it alleges, has already decided this issue in its favour. In its view, the facts and legal issues in that case are undistinguishable from those in the case at bar.

In order to properly understand the arguments of the parties and the decision of the Supreme Court of Canada, it is necessary to reproduce a certain number of definitions:

Copyright Act

[R.S.C., 1985, c. C-42, ss. 2 (as enacted by S.C. 1988, c. 65, s. 61), 3(1)(f) (as am. idem, s. 62)]

2. ...

“every original literary, dramatic, musical and artistic work” includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works or compositions with or without words, illustrations, sketches and plastic works relative to geography, topography, architecture or science;

...

“musical work” means any combination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced;

...

“performance” means any acoustic representation of a work or any visual representation of any dramatic action in a work, including a representation made by means of any mechanical instrument or by radio communication;

...

“telecommunication” means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system;

3. (1) For the purposes of this Act, “copyright” means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

...

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work by radio communication,

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication. [As amended in 1988 [R.S.C. 1988, c. 65, s. 62]]. [My underlining.]

Rome Copyright Convention, 1928

[R.S.C., 1985, c. C-42, Schedule III]

Article 11 (bis)

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the communication of their works to the public by radiocommunication.

In the CAPAC case, Pigeon J., writing for the Supreme Court and applying a literal construction to the Copyright Act, came to the following conclusions:

1. In view of the definitions of “musical work” and “performance”, CTV, by transmitting its entertainment programming to its affiliated stations either by shipping a copy of the video tape or by means of cable and microwave facilities, did not communicate “musical work” as defined in the Act, that is to say graphic reproductions of melody and harmony. Rather it communicated not the “work” but a “performance of the work”.[13]

2. Paragraph 3(1)(f) was inspired by paragraph 1 of Article 11 (bis) of the Rome Copyright Convention, 1928.[14]

3. Unlike the Canadian Copyright Act, the Rome Convention does not define “work” and the undefined word, as applied to musical work, is properly taken in the Convention in the primary sense of the composition itself, not its graphic representation as in the Act.[15]

4. The word “communication” does not usually mean a “performance” but in the Convention it is apt to include performances in its meaning along with other modes of representation applicable to other kinds of artistic or literary works that are not “performed”.[16]

5. Paragraph 3(1)(f) does not read “to communicate a performance of such work by radio communication” but to “communicate such work by radio communication” and, in view of the statutory definitions of “musical work” and of “performance”, the insertion of the word “performance” in the enactment is a very substantial departure from the text as written.[17]

6. To give paragraph 3(1)(f) the scope and meaning sought by the appellant, the word “performance” would have to be inserted in paragraph 3(1)(f) and the words “in public” would have to be deleted from section 3 because a performance of musical work is outside the scope of the definition of copyright if it is not in public.[18]

To distinguish the CAPAC case, the appellants now submit that the definition of “musical work” in the Copyright Act not only refers to a graphic representation of melody and harmony, but also to the primary sense of the composition itself. They borrow such an extended meaning from the definition of “every original literary, dramatic, musical and artistic work” found in section 2 and used in section 5 of the Act which refers both to musical work or composition with or without words. They conclude that the words “musical work” and “musical composition” are therefore used and usable interchangeably.

To arrive at such a result, one must for all practical purposes either ignore the contents of the definitions in section 2 of the Act or make what I would call a cross-fertilization of those definitions. In either case, this defies the most basic rules of legislative drafting and interpretation. Definitions are used for convenience and to bring more precision to a legislative text. They are meant to be of assistance to legislative drafting, not to bring confusion to legislative interpretation.[19] The meaning of a definition cannot be changed by ignoring it or part of it or by reading in it words or concepts borrowed from another definition. The contents of definitions are simply not interchangeable and only confusion could result from cross-fertilization.

This in itself should be sufficient to dispose of the appellants’ argument. In addition, however, the definition of the words “every original literary, dramatic, musical and artistic work” makes it plainly obvious that musical work is not meant to refer to or to include “composition with or without words” as the legislator opposes the two notions in that definition. It makes sense for Parliament to do that as section 5, in which the definition of “every original work” is used, broadly protects copyright in every original work. In the case of music, it is appropriate that it extends also to every original composition, not only to music work as narrowly defined in section 2 to mean every combination of melody and harmony printed, reduced to writing or graphically produced.

It is interesting to note that the Copyright Act has been amended at least three times[20] since the Supreme Court rendered its judgment in 1968 and that Parliament has never questioned the interpretation given to “musical works” by the Court. It is all the more interesting and telling as, in the first series of amendments of 1988, Parliament saw fit to change, in section 2 of the Act, the definition of the words “architectural work”, “artistic work” and “literary work” and to add the definition of “choreographic work”, but left unchanged that of “musical work”.[21] It had ample opportunity to do so as it revisited the definitions. One can only conclude that Parliament was satisfied with the meaning the Supreme Court had earlier given to “musical work” and which had been in force for twenty years at the time of the amending legislation.

The appellants heavily rely upon an amendment made in 1988 to paragraph 3(1)(f) whereby the words “to the public” were added to the section and the word “telecommunication” replaced “radio communication” and was defined. They contend that this amendment implements the change suggested by the Supreme Court in the CAPAC case and that, as a result, Parliament has made respondent CTV liable to pay compensation for the use of music it includes in the programming transmitted by the network to its affiliated stations. In the words of the appellants, the commercial network of the respondent is a joint venture with its affiliated station and respondent CTV communicates musical works to the public by telecommunication.

I am willing to accept that the words “to the public” are broader than “in public” and that the insertion of those words may have taken care of the concern of Pigeon J. that performance of musical works under the Act always be in public.[22] The words “to the public” now found in paragraph 3(1)(f) of the Act parallel those found in Article 11(1) (bis) of the Rome Convention and would satisfy the requirement that a performance be in public.

However, the amendment leaves unanswered the crucial point decided by Pigeon J., to wit that paragraph 3(1)(f) covers the communication of musical works to the public, that is to say graphic reproductions of melody and harmony, while what is communicated by respondent CTV within the terms of the Act as framed is not the “works” but “a performance of the works”,[23] that is to say an acoustic representation of such works. As the definitions of “musical works” and “performance” have remained unchanged, paragraph 3(1)(f) should have been amended to refer to “communication of the performance of musical works” in order to cover the acts of the respondent CTV. This is clear from this passage of the judgment where referring to paragraph 3(1)(f) Pigeon J. wrote:

However, as previously noted, the material part of the provision does not read “to communicate a performance of such work by radio communication” but “to communicate such work by radio communication”. In view of the statutory definitions of “musical works” and of “performance” the insertion of the word “performance” in the enactment is a very substantial departure from the text as written.[24]

The Supreme Court refused to make the legislative change. This Court is bound by that decision.

In addition, if this Court were to include the word “performance” in paragraph 3(1)(f), it would be confronted with the fact that the communication made by respondent CTV is made to its affiliated stations through electrical signals or data streams and not to the public in any audible state. I shall return later to this question of whether CTV’s transmission of its entertainment programming to its affiliated stations is private or public.

I might add that the amendments to paragraph 3(1)(f) on which the appellants rely were enacted to implement the Free Trade Agreement [S.C. 1988, c. 65, Schedule, Part A] with respect to the retransmission of local or distant signals that carry a literary, dramatic, musical or artistic work.[25] This appears clearly from the explanatory notes which accompanied Bill C-2 at the time of the first reading. The definition of “telecommunication” is said to be consequential to the amendments brought to paragraph 3(1)(f) and the latter was introduced to clarify the concept of communicating certain works to the public in order to implement paragraph 2(a) of Article 2006 of the Free Trade Agreement which deals with the retransmission to the public of program signals not intended in the original transmission for free, over-the-air reception by the general public.[26]

The respondent CTV is not a retransmitter within the meaning of the Copyright Act and therefore is not affected by these amendments.

It is significant in my view that the appellants have not been able to point to a single indicia of evidence, be they discussions or debates in the House of Commons, Committees or elsewhere, that would show that the amendments to paragraph 3(1)(f), along with sections 2, 28, 66.52 [as am. by S.C. 1988, c. 65, s. 64], 70.61 [as enacted idem, s. 65] and others of the Copyright Act to implement the Free Trade Agreement, were intended to reverse the decision of the Supreme Court of Canada in the CAPAC case and to subject entertainment programming networks to the payment of royalties. I doubt that Parliament would have dealt with such an important issue in such an indirect and disguised manner.

The appellants also submitted that subsection 3(1.4) [as enacted idem, s. 62] of the Copyright Act, equally introduced by the Canada—United States Free Trade Agreement Implementation Act [section 62], confirms the intent to cover networks like that of the respondent. That section, which is no more than an interpretative provision, reads:

3. ...

(1.4) For the purpose of paragraph (1)(f), where a person, as part of a network whose object is to communicate works to the public, transmits by telecommunication a work that is communicated to the public by another person, the transmission and communication of the work by those persons constitute a single communication to the public for which those persons are jointly and severally liable.

To the extent that one wants to apply that provision to the respondent’s network, one is confronted with the same difficulty as under paragraph 3(1)(f). As a matter of fact, subsection 3(1.4) complements paragraph 3(1)(f) and, like it, refers to the communication of works. However, paragraph 3(1)(f) does not apply to the respondent’s network because the respondent communicates the performance of musical works. It does not communicate musical works per se. Consequently, subsection 3(1.4) has no more application than the main provision it complements.

Whether respondent CTV performs musical works in public within subsection 3(1) of the Copyright Act

According to the appellants, respondent CTV broadcasts musical works and such broadcasting constitutes a performance of the work in public within the meaning of subsection 3(1) of the Act. Furthermore, respondent is alleged to be a full participant in the broadcasting of network programming and therefore is itself performing the works in public.

With respect, I do not think that respondent CTV is performing musical works in public when it transmits its entertainment programming to its affiliated stations. That very question of the public or private nature of respondent’s action was before the Supreme Court in the CAPAC case and Pigeon J. held the transmission to be private, not public. He came to that conclusion both on a literal and on a purposive interpretation of the Copyright Act.

Looking literally at the then paragraph 3(1)(f) of the Act, he concluded that, in order to accept the contention of the appellant that the respondent was communicating musical work within the terms of the subparagraph, one would have to insert the word “performance” in it and delete the words “in public” found in section 3. This is because section 3 required at that time and still requires now that performance be in public and also because the transmission by the respondent CTV to its affiliated stations was in private. He wrote:

Bearing in mind that the reproduction of a work as distinguished from a performance thereof is always within the definition of “copyright” while a performance is outside the scope of the definition if not in public, it is only through the insertion of the word “performance” without the words “in public” that a departure from principle would be effected.[27]

Obviously, one other way would be to change the definition of “musical work” and “performance”.

As far as a purposive interpretation of the Act was concerned, he referred to the anomalous result that would flow from the contention advanced by the appellant in view of the fact that respondent’s transmission to its affiliated stations is private. He dismissed the appellant’s contention in these terms:

The contention advanced by CAPAC would have the anomalous result that the extent of the copyright with respect to the communication or transmission of performances of musical works, would depend on the means employed for such communication or transmission. If it was by physical delivery of magnetic tape or by transmission of an electrical signal by cable, there would be no monopoly in favour of the owner of the copyright in the works performed. However, such monopoly would exist if the transmission was by microwave, although such transmission would be as private as in the other cases.[28] [My underlining.]

The factual and legal situation has not changed since that decision and the fact that transmission by electrical signals or data streams has replaced transmission by microwaves does not change the private character of such transmission.

Furthermore, it cannot be said that the respondent CTV broadcasts to the public when it transmits its programming to its affiliated stations. Such transmission does not meet the definition of broadcasting in the Broadcasting Act[29] as it is not a transmission by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus. The affiliated stations meet that definition and do hold a broadcasting licence. Respondent CTV is the holder of a TV programmer licence, but has no authorization from the CRTC to broadcast and indeed does not broadcast to the public.

Whether respondent CTV authorizes the public performance of the works in the network programming

As I understand the argument, respondent CTV would be liable for the broadcasting of musical works by its affiliated stations because, in the words of the appellants, it authorizes it. There is no doubt in my mind that the respondent CTV, through its programming activities and its distribution network, facilitates the work of the affiliated stations. This is its “raison d’être” as a television programmer involved in the acquisition, development and distribution of entertainment programming. Indeed, respondent CTV does not deny that and even suggests that the affiliated stations probably pay more in copyrights to the appellants than an independent broadcasting station does because the network is successful.

With respect, to facilitate is not to authorize. The authorization given to respondent CTV’s affiliated stations to broadcast musical works comes from the appellants themselves. Here again the factual and legal situation is the same as it was in the CAPAC case and it is in vain that the appellants have tried to distinguish it. Respondent CTV facilitated what the appellants have authorized the affiliated stations to do. It is in these terms that Pigeon J. dismissed the appellant’s contention in this regard:

The authorization to make use of the copyright by performing the works through television broadcasts was given by CAPAC to the affiliated stations and it cannot be said to proceed from CTV. CTV effectively provided the means of doing that which CAPAC had authorized.[30]

There is nothing wrong in facilitating or even authorizing what one is legally entitled to do.

Conclusion

In conclusion, I believe the appellants have no legal basis, statutory or otherwise, to file a statement of royalties that applies to the entertainment programming network of respondent CTV. I am not insensitive or unsympathetic to the appellants’ plight but it requires fundamental and substantial legislative changes that this Court has no authority to effect. Policy-making with respect to important issues such as in the present case involves substantial economical, social and cultural considerations which have simply not been properly canvassed in this Court and requires an extensive and meaningful public debate that this Court cannot offer.

For the reasons given, the appeal should be dismissed with costs payable by the appellants to the respondent CTV Television Network Ltd.

The cross-appeal by the respondent The Copyright Board should be dismissed without costs.

Heald J.A.: I concur.

Desjardins J.A.: I concur.

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