Entertainment Software Association v. Entertainment Software Association of Canada, 2012 SCC 34

SUPREME COURT OF CANADA Citation: Entertainment Software Association v.

Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231 Date: 20120712 Docket: 33921 Between: Entertainment Software Association and Entertainment Software Association of Canada Appellants and Society of Composers, Authors and Music Publishers of Canada Respondent - and - CMRRA-SODRAC Inc., Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and Cineplex Entertainment LP Interveners Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

Joint Reasons for Judgment: (paras. 1 to 44) Dissenting Reasons: (paras. 45 to 128) Abella and Moldaver JJ. (McLachlin C.J. and Deschamps and Karakatsanis JJ. concurring) Rothstein J. (LeBel, Fish and Cromwell JJ. concurring) Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231 Entertainment Software Association and Entertainment Software Association of Canada Appellants v. Society of Composers, Authors and Music Publishers of Canada Respondent and

CMRRA-SODRAC Inc., Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and Cineplex Entertainment LP Interveners Indexed as: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 34 File No.: 33921. 2011: December 6; 2012: July 12.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. on appeal from the federal court of appeal Intellectual property — Copyright — Right to communicate a work to the public by telecommunication — Copyright Board certifying tariff for communication rights in copyrighted music contained in video games sold for download on Internet — Whether transmission of musical works contained in a video game through an Internet download is a communication to the public — Copyright Act, R.S.C. 1985, c. C-42, s. 3(1) (f).

The appellants ESA represent a coalition of video game publishers and distributors who enable customers to download copies of video games from the Internet. These copies are identical to copies purchased in stores or shipped to customers by mail. The video games contain copyrighted musical works. The royalties for the reproduction of those musical works are negotiated before the games are sold to the public.

The respondent SOCAN, which administers the right to “communicate” musical works on behalf of copyright owners, applied to the Copyright Board for a tariff covering downloads of musical works over the Internet. The Copyright Board concluded that the download of a file containing a musical work is a communication to the public by telecommunication within the meaning of s. 3(1) (

f) of the Copyright Act , entitling SOCAN’s members to compensation in accordance with an approved tariff. On judicial review, the Federal Court of Appeal upheld the Copyright Board’s decision. Held (LeBel, Fish, Rothstein and Cromwell JJ. dissenting): The appeal should be allowed. Per McLachlin C.J. and Deschamps, Abella, Moldaver and Karakatsanis JJ.: The Copyright Board’s conclusion that the Internet delivery of a permanent copy of a video game containing musical works amounted to a “communication” under s. 3(1) (

f) of the Copyright Act should be set aside. The Board’s conclusion that a separate, “communication” tariff applies to downloads of musical works violates the principle of technological neutrality. This principle requires that the Act apply equally between traditional and more technologically advanced media forms. There is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet. ESA has already paid reproduction royalties to the copyright owners for the video games.

Absent evidence of Parliamentary intent to the contrary, we interpret the Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies. The Internet should be seen as a technological taxi that delivers a durable copy of the same work to the end user.

The traditional balance in copyright between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creators of those works should be preserved in the digital environment. The term “communicate” in s. 3(1)(

f) is not defined in the Act , but the legislative history of the Act demonstrates that the right to “communicate” is historically connected to the right to perform a work and not the right to reproduce permanent copies of the work. The 1988 amendment in the Act from “communicate . . . by radio communication” to “communicate . . . by telecommunication” does not demonstrate Parliament’s intent to remove all reference in s. 3(1) (

f) to conventional performance or broadcasting activities, or to expand the communication right to technologies such as downloading that involve transmitting data in a way that gives end users a permanent copy of the work. Instead, the replacement of the words “radio communication” with “telecommunication” should be understood as merely expanding the means of communicating a work — that is, from radio waves to cable and other future technologies.

By substituting the word “telecommunication” in 1988, Parliament did not intend to change the fundamental nature of the communication right, which has been concerned with performance-based activities for over 50 years. Applying the dictionary definition of the word “communicate” has the effect of ignoring a solid line of legislative history connecting the term “communicate” to performance-based activities. The term “communicate” in s. 3(1) (

f) should not be transformed by the use of the word “telecommunication” in a way that would capture activities that resemble reproduction. Such transformation would result in abandoning the traditional distinction in the Act between performance-based rights and rights of reproduction. Per LeBel, Fish, Rothstein and Cromwell JJ. (dissenting): The creators of works downloaded from the Internet are entitled to both communication and reproduction rights. Copyright is a creature of statute comprised of a bundle of independent statutory rights.

Although a technologically neutral copyright law is desirable, the Act cannot be interpreted in a manner that divests these rights of their independent content. The right of reproduction continues to apply to copies made through downloads notwithstanding that they are digital copies and the communication right continues to apply to digital communications notwithstanding that they may differ from traditional broadcasting technologies. The general rules of statutory

interpretation require that the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament. The word “communicate” is not defined in the Act . Parliament is presumed to use words in their ordinary meaning and d ictionary

definitions give “communicate” and “transmit” overlapping meanings. Nothing in the context in which the words are used in the Actindicates that “communicate” is distinct in meaning from “transmit” or is limited to transmissions of information in a humanlyperceptible form for immediate perceiving and listening. The communication right set out in s. 3(1)(

f) of the Act is a self-standing right that is independent of the performance rightset out in the introductory portion of s. 3(1). The rights listed in paragraphs 3(1)(

a) to 3(1)(

i) are in addition to the rights to produce orreproduce, perform or publish. Nor does the legislative history of s. 3(1)(

f) confine the communication right to being only a variation ofthe performance right. Although there is an historic relationship between the right of public performance and the right to communicate tothe public, the legislation has evolved. By adopting the word “telecommunication”, Parliament removed the historic reference toconventional broadcasting and encompassed evolving technologies. The current language of the Act does not support a conclusion thats. 3(1)(

f) only applies to traditional broadcasting technologies. The application of the communication right does not depend on the purpose of the communication. The fact that the Internettransmission delivers a copy of a video game, which contains a musical work, does not change the fact that there is an Internetcommunication requiring authorization of the copyright holder. No policy concern arises because the reproduction right and the communication right are distinct and separate rights. Thefact that there are two protected rights does not restrict the protection afforded by each right.

To characterize an Internet transmission asa mere “method of delivery” of a work and limit the copyright to reproduction rights would pre-empt the application of thecommunication right. Inferring limits into the communication right for policy reasons is beyond the function of the courts. Cases Cited By Abella and Moldaver JJ. Referred to: Robertson v. Thomson Corp., 2006 SCC 43, [2006] 2 S.C.R. 363; Théberge v. Galerie d’Art du PetitChamplain inc., 2002 SCC 34, [2002] 2 S.C.R. 336; Bishop v. Stevens, (SCC), [1990] 2 S.C.R. 467; Composers, Authorsand Publishers Assoc. of Canada Ltd. v.

CTV Television Network Ltd., (SCC), [1968] S.C.R. 676; Canadian WirelessTelecommunications Assn. v. Society of Composers, Authors and Music Publishers of Canada, 2008 FCA 6, [2008] 3 F.C.R. 539;Canadian Admiral Corp. v. Rediffusion, Inc., (CA EXC), [1954] Ex. C.R. 382; Society of Composers, Authors andMusic Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427; Ontario v. Canadian PacificLtd., (SCC), [1995] 2 S.C.R. 1031; Ash v. Hutchinson & Co. (Publishers), Ltd., [1936] 2 All E.R. 1496; AppleComputer Inc. v. Mackintosh Computers Ltd., (FC), [1987] 1 F.C. 173.

By Rothstein J. (dissenting) Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336; Compo Co. v. Blue Crest Music Inc.,(SCC), [1980] 1 S.C.R. 357; Bishop v. Stevens, (SCC), [1990] 2 S.C.R. 467; SOCAN Statement ofRoyalties, Public Performance of Musical Works 1996, 1997, 1998 (Tariff 22, Internet) (Re) (1999), (CA CB), 1C.P.R. (4th) 417; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, FCA220, 409 N.R. 102; Rogers Communications Inc. v.

Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35,[2012] 2 S.C.R. 283; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339; Canadian WirelessTelecommunications Assn. v. Society of Composers, Authors and Music Publishers of Canada, 2008 FCA 6, [2008] 3 F.C.R. 539, leave United States v. American Society of Composers, Authors and Publishers, 627 F.3d 64 (2010), cert. denied (U.S.S.C., October 3, 2011,No. 10-1337); Robertson v. Thomson Corp., 2006 SCC 43, [2006] 2 S.C.R. 363. Statutes and Regulations Cited 17 U.S.C. §§ 101, 106(4) (2000).

Act to amend the Copyright Act, S.C. 1993, c. 23, s. 3. Act to amend the Copyright Act, S.C. 1997, c. 24, ss. 18, 45. Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, ss. 61 to 65. Copyright Act, R.S.C. 1985, c. C-42, ss. 2 “telecommunication”, 2.2(1) “publication”, 2.4(1)(c), 3(1)(f), 15(1), 27(2), 29.4(2), 30.8(1), 67to 68.2. Copyright Act, 1921, S.C. 1921, c. 24, ss. 2(q) “performance”, 3(1). Copyright Amendment Act, 1931, S.C. 1931, c. 8, ss. 2(3) “performance”, 3.

Statement of Proposed Royalties to Be Collected by SOCAN for the Public Performance or the Communication to the Public byTelecommunication, in Canada, of Musical or Dramatico-Musical Works, (2005) 139 Can. Gaz. I (Supp.). Treaties and Other International Instruments Berne Convention for the Protection of Literary and Artistic Works, 828 U.N.T.S. 221, September 9, 1886; rev. in Berlin November 13,1908, art. 11, 13, 14; rev. in Rome June 2, 1928, art. 11bis.

Canada-U.S. Free Trade Agreement, 1987, arts. 2005, 2006. North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and theGovernment of the United States of America, Can. T.S. 1994 No. 2. Authors Cited Canada. Canada-U.S. Free Trade Agreement. Ottawa: External Affairs, 1987. Canada. House of Commons. House of Commons Debates, vol. 1, 2nd Sess., 17th Parl., April 23, 1931, pp. 899-900. Canada. House of Commons. House of Commons Debates, vol. 3, 2nd Sess., 17th Parl., June 8, 1931, p. 2399.

Craig, Carys. “Locking Out Lawful Users: Fair Dealing and Anti-Circumvention in Bill C-32”, in Michael Geist, ed., From “RadicalExtremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda. Toronto: Irwin Law, 2010, 177. Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Goldstein, Paul, and P. Bernt Hugenholtz. International Copyright: Principles, Law, and Practice, 2nd ed. New York: OxfordUniversity Press, 2010. Handa, Sunny. Copyright Law in Canada. Markham, Ont.: Butterworths, 2002. Judge, Elizabeth F., and Daniel J. Gervais.

Intellectual Property: The Law in Canada, 2nd ed. Toronto: Carswell, 2011. Katz, Ariel. “Commentary: Is Collective Administration of Copyrights Justified by the Economic Literature?”, in Marcel Boyer,Michael Trebilcock and David Vaver, eds., Competition Policy and Intellectual Property. Toronto: Irwin Law, 2009, 449. McKeown, John S. Fox on Canadian Law of Copyright and Industrial Designs, 4th ed. Toronto: Thomson/Carswell, 2009 (loose-leafupdated 2012, release 1). Merriam-Webster’s Collegiate Dictionary, 11th ed. Springfield, Mass.: Merriam-Webster, 2003, “communicate”, “transmit”. Moyse, Pierre-Emmanuel.

Le droit de distribution: analyse historique et comparative en droit d’auteur. Cowansville, Qué.: YvonBlais, 2007. Oxford English Dictionary (online: www.oed.com), “communicate”, “transmit”. Shorter Oxford English Dictionary on Historical Principles, 6th ed., vol. 1. Oxford: Oxford University Press, 2007, “communicate”. Sullivan, Ruth. Statutory

Interpretation, 2nd ed. Toronto: Irwin Law, 2007. Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002. Vaver, David. Intellectual Property Law: Copyright, Patents, Trade-marks, 2nd ed. Toronto: Irwin Law, 2011. APPEAL from a judgment of the Federal Court of Appeal (Létourneau, Nadon and Pelletier JJ.A.), 2010 FCA 221, 406 N.R.288, 323 D.L.R. (4th) 62, 86 C.P.R. (4th) 258, 14 Admin. L.R. (5th) 151, [2010] F.C.J.

No. 1088 (QL), 2010 CarswellNat 3113,affirming a decision of the Copyright Board, www.cb-cda.gc.ca/decisions/2007/20071018-m-e.pdf, (2007), (CACB), 61 C.P.R. (4th) 353, [2007] C.B.D. No. 7 (QL), 2007 CarswellNat 3466. Appeal allowed, LeBel, Fish, Rothstein and Cromwell JJ.dissenting. Barry B. Sookman and Daniel G. C. Glover, for the appellants. Gilles Daigle, D. Lynne Watt, Paul Spurgeon and Henry Brown, Q.C., for the respondent. Written submissions only by Casey M. Chisick, Timothy Pinos and Jason Beitchman, for the intervener CMRRA-SODRACInc.

Written submissions only by Jeremy de Beer and David Fewer, for the intervener the Samuelson-Glushko Canadian InternetPolicy and Public Interest Clinic. Written submissions only by Tim Gilbert, Sana Halwani and Sundeep Chauhan, for the intervener Cineplex EntertainmentLP. The judgment of McLachlin C.J. and Deschamps, Abella, Moldaver and Karakatsanis JJ. was delivered by [1] Abella and Moldaver JJ. — In the video game publishing industry, the royalties for the reproduction of any musicalworks which are incorporated into the games are currently negotiated before the games are packaged for public sale.

Once these rightshave been negotiated, the owner of the copyright in the musical work has no further rights when the game is sold. The question in thisappeal is whether the rights are nonetheless revived when the work is sold over the Internet instead of in a store. In our view, it makeslittle sense to distinguish between the two methods of selling the same work. [2] The Copyright Board concluded that video games containing a musical work, the royalties to which have alreadybeen negotiated with the copyright owner, were nonetheless subject to a new fee when sold over the Internet ((2007), 2007

91902 (CA CB), 61 C.P.R. (4th) 353). Its decision was upheld by the Federal Court of Appeal (2010 FCA 221, 406 N.R. 288). In ourrespectful view, the Board’s decision misconstrues the provisions at issue in the Copyright Act, R.S.C. 1985, c. C-42, ignoring decadesof legislative history, and violates the principle of technological neutrality, which requires that the Act apply equally notwithstanding thetechnological diversity of different forms of media. Analysis [3] The provision at issue in this appeal is s. 3(1)(

f) of the Copyright Act, which states that copyright owners have thesole right in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication . .. . [4] The focus of this appeal is on the meaning of the word “communicate” in s. 3(1)(f), a term which is not defined inthe Act. The Society of Composers, Authors and Music Publishers of Canada (SOCAN), which administers the right to “communicate”musical works on behalf of copyright owners, applied to the Board for a tariff under this provision to cover downloads of musical worksover the Internet.

The Entertainment Software Association and the Entertainment Software Association of Canada (collectively, ESA),which represent a broad coalition of video game publishers and distributors, objected to the tariff, arguing that “downloading” a videogame containing musical works did not amount to “communicating” that game to the public by telecommunication under s. 3(1)(f). Instead, a “download” is merely an additional, more efficient way to deliver copies of the games to customers.

The downloaded copy isidentical to copies purchased in stores or shipped to customers by mail, and the game publishers already pay copyright ownersreproduction royalties for all of these copying activities. [5] We agree with ESA. In our view, the Board’s conclusion that a separate, “communication” tariff applied todownloads of musical works violates the principle of technological neutrality, which requires that the Copyright Act apply equallybetween traditional and more technologically advanced forms of the same media: Robertson v. Thomson Corp., 2006 SCC 43[2006] 2 S.C.R. 363, at para. 49.

The principle of technological neutrality is reflected in s. 3(1) of the Act, which describes a right toproduce or reproduce a work “in any material form whatever”. In our view, there is no practical difference between buying a durablecopy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet.

The Internet is simply atechnological taxi that delivers a durable copy of the same work to the end user. [6] This argument is echoed by David Vaver in his book, Intellectual Property Law: Copyright, Patents, Trade-marks(2nd ed. 2011), where he appears to criticize the Board’s decision in this particular case: In principle, substitute delivery systems should compete on their merits: either both or neither should pay. Copyright lawshould strive for technological neutrality. . . .

In the past, whether a customer bought a sound recording or video game physically at a store or ordered it by mailmade no difference to the copyright holder: it got nothing extra for the clerk’s or courier’s handover of the record to the customer. Now,because of the telecommunication right, copyright holders can and do charge extra for electronic delivery of identical content acquiredoff websites. [Emphasis added; pp. 172-73.] [7] ESA’s argument is also consistent with this Court’s caution in Théberge v.

Galerie d’Art du Petit Champlain inc.,2002 SCC 34 [2002] 2 S.C.R. 336, that the balance in copyright between promoting the public interest in the encouragementand dissemination of works and obtaining a just reward for the creator requires recognizing the “limited nature” of creators’ rights: The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights butin giving due weight to their limited nature.

In crassly economic terms it would be as inefficient to overcompensate artists and authorsfor the right of reproduction as it would be self-defeating to undercompensate them.

Once an authorized copy of a work is sold to amember of the public, it is generally for the purchaser, not the author, to determine what happens to it. [Emphasis added; para. 31.] [8] The traditional balance between authors and users should be preserved in the digital environment: Carys Craig,“Locking Out Lawful Users: Fair Dealing and Anti-Circumvention in Bill C-32”, in Michael Geist, ed., From “Radical Extremism” to“Balanced Copyright”: Canadian Copyright and the Digital Agenda (2010), 177, at p. 192. [9] SOCAN has never been able to charge royalties for copies of video games stored on cartridges or discs, and boughtin a store or shipped by mail.

Yet it argues that identical copies of the games sold and delivered over the Internet are subject to both a feefor reproducing the work and a fee for communicating the work. The principle of technological neutrality requires that, absent evidenceof Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protectionsand fees based solely on the method of delivery of the work to the end user.

To do otherwise would effectively impose a gratuitous costfor the use of more efficient, Internet-based technologies. [10] The Board’s misstep is clear from its definition of “download” as “a file containing data . . . the user is meant tokeep as his own” (para. 13). The Board recognized that downloading is a copying exercise that creates an exact, durable copy of thedigital file on the user’s computer, identical to copies purchased in stores or through the mail.

Nevertheless, it concluded that deliveringa copy through the Internet was subject to two fees — one for reproduction and one for communication — while delivering a copythrough stores or mail was subject only to reproduction fees. In coming to this conclusion, the Board ignored the principle oftechnological neutrality. [11] Justice Rothstein argues (at para. 126) that the Board can avoid such “double-dipping” by copyright owners byadjusting the two fees in a way that “divides the pie” between the collective societies administering reproduction rights, on the one hand,and communication rights, on the other.

However, this seems to us to undermine Parliament’s purpose in creating the collective societies

in the first place, namely to efficiently manage and administer different copyrights under the Act. This inefficiency harms both end usersand copyright owners: When a single economic activity implicates more than one type of right and each type is administered by a separatecollective, the multiplicity of licences required can lead to inefficiency. . . .

The result is that the total price the user has to pay for allcomplements is too high . . . . . . . . . . the fragmentation of licences required for single activities among several monopolist-collectives generatesinefficiencies, from which copyright owners as a whole also suffer . . . . (Ariel Katz, “Commentary: Is Collective Administration of Copyrights Justified by the Economic Literature?”, in MarcelBoyer, Michael Trebilcock and David Vaver, eds., Competition Policy and Intellectual Property (2009), 449, at pp. 461-63) [12] In our view, the Board improperly concluded that the Internet delivery of copies of video games containing musicalworks amounts to “communicating” the works to the public.

This view is evidenced by the legislative history of the Copyright Act,which demonstrates that the right to “communicate” is historically connected to the right to perform a work and not the right to reproducepermanent copies of the work. [13] As this Court held in Bishop v. Stevens, (SCC), [1990] 2 S.C.R. 467, at pp. 473-74, the 1921Canadian Copyright Act was based on, and designed to implement, the following provisions of the 1886 Berne Convention for theProtection of Literary and Artistic Works, as revised in the 1908 Berlin Revision:

Article 11 The stipulations of the present Convention shall apply to the public representation of dramatic or dramatico-musicalworks and to the public performance of musical works, whether such works be published or not. . . .

Article 13 The authors of musical works shall have the exclusive right of authorizing (1) the adaptation of those works toinstruments which can reproduce them mechanically; (2) the public performance of the said works by means of these instruments. . . .

Article 14 Authors of literary, scientific or artistic works shall have the exclusive right of authorizing the reproduction and publicrepresentation of their works by cinematography. [14] These articles were reflected in the introductory paragraph to s. 3(1) of the Copyright Act, 1921, S.C. 1921, c. 24,which granted the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever, to perform, orin the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to publish the work or anysubstantial part thereof; . . . [15] In the 1921 Act, “performance” was defined in s. 2(

q) as any acoustic representation of a work and any visual representation of any dramatic action in a work, including such arepresentation made by means of any mechanical instrument; [16] The right to perform historically presupposed a live audience that would be present at the site where the performancetook place. With the advent of radio broadcasting, however, a debate emerged about how this new technology should be treated undercopyright law, reminiscent of the current debate over Internet technologies.

The international consensus was that radio broadcastingshould be treated as an extension of the existing performance right, in order to cover distant audiences: Paul Goldstein and P. BerntHugenholtz, International Copyright: Principles, Law, and Practice (2nd ed. 2010), at §9.1.4.3; Pierre-Emmanuel Moyse, Le droit dedistribution: analyse historique et comparative en droit d’auteur (2007), at pp. 309-10. The Rome Revision (1928) of the BerneConvention therefore extended the

Article 11 performance right. The new

Article 11bis conferred on authors the “exclusive right ofauthorizing the communication of their works to the public by radiocommunication”. [17] Canada acceded to the amended Berne Convention in 1928, and enacted s. 3(1)(

f) of the Copyright Act in 1931 toincorporate the new

Article 11bis: (

f) In case of any literary, dramatic, musical or artistic work, to communicate such work by radio communication. (Copyright Amendment Act, 1931, S.C. 1931, c. 8, s. 3) [18] At the same time, the 1931 Copyright Amendment Act amended the definition of “performance” to accommodate thisnew concept of performances at a distance: “performance” means any acoustic representation of a work . . . including a representation made by means of any

mechanical instrument or by radio communication. [s. 2(3)] [19] Like a performance, communicating a work by radio communication (i.e., a radio broadcast) under s. 3(1)(f)involved an “acoustic representation” of a work. Also like a performance, communication under s. 3(1)(

f) did not contemplate thedelivery of permanent copies of the work, since such a delivery was not possible through the means of Hertzian radio waves. [20] This

interpretation of the original s. 3(1)(

f) is supported by the legislative debates. In explaining the purpose of thisprovision to Parliament, the Minister responsible for the amendments, C. H. Cahan, stated that s. 3(1)(

f) was intended to bring theCopyright Act into conformity with the Rome Revision of the Berne Convention (House of Commons Debates, vol. 1, 2nd Sess., 17thParl., April 23, 1931, at pp. 899-900), and that “radio communication” was a form of performance: In England, the courts have decided that radio communication comes within the meaning of the word performance; but inorder to make it clear that the author’s rights include not only the right of performance by acoustic representation and so forth, but alsoby radio communication, we have added those words “or by radio communication” to the present definition of performances as containedin the act. . . .

I am simply adding the words “or by radio communication” to make it clear that in respect of radio communication theauthor has exactly the same rights as he has in relation to other performances of his work. [Emphasis added.] (vol. 3, June 8, 1931, at p. 2399) [21] This was also the

interpretation of the original s. 3(1)(

f) by this Court in Composers, Authors and Publishers Assoc.of Canada Ltd. v. CTV Television Network Ltd., (SCC), [1968] S.C.R. 676. The Court held that signals transmitted fromCTV to its affiliates did not communicate “musical works” — at the time defined as “reduced to writing” — but instead communicated a“performance” of the works. In obiter, the Court went on to hold that

Article 11bis of the Rome Convention, on which s. 3(1)(

f) wasbased, was intended to cover public performances by radio broadcasting (pp. 680-82). Moreover, it held that “communication” is “apt toinclude performances in its meaning” (p. 681). As a result, the Court concluded that s. 3(1)(

f) must include the exclusive right of publicperformance by radio broadcasting. [22] After 1931, there were no changes to s. 3(1)(

f) until 1988. In 1988, s. 3(1)(

f) was amended to read as follows: (

f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public bytelecommunication. . . . (Canada-United States Free Trade Agreement Implementation Act, S.C. 1988, c. 65, s. 62) [23] SOCAN argues that the 1988 amendment from “radio communication” to “telecommunication” demonstratesParliament’s intent to remove all reference in s. 3(1)(

f) to conventional performance or broadcasting activities, and to expand thecommunication right to technologies that involve transmitting data in a way that gives end users a permanent copy of the work. [24] With respect, we disagree. The 1988 amendments to the Copyright Act found at ss. 61 to 65 of the Canada-UnitedStates Free Trade Agreement Implementation Act, were enacted in order to give effect to Articles 2005 and 2006 of the 1987 Canada-U.S. Free Trade Agreement (CUFTA): see Canadian Wireless Telecommunications Assn. v.

Society of Composers, Authors and MusicPublishers of Canada, 2008 FCA 6, [2008] 3 F.C.R. 539 (CWTA v. SOCAN), at para. 27. Before CUFTA, Canadian courts had held that“radio communication” under the former s. 3(1)(

f) was limited to Hertzian radio waves and did not extend to communication by co-axialcables: Canadian Admiral Corp. v. Rediffusion, Inc., (CA EXC), [1954] Ex. C.R. 382, at p. 410. CUFTA, however,required Canada to compensate copyright owners for the retransmission of television signals that were sent over cable lines. Theamendments were therefore designed to ensure that cable companies, and not just radio broadcasters, would also be captured under s.3(1)(f): John S.

McKeown, Fox on Canadian Law of Copyright and Industrial Designs (4th ed. (loose-leaf)), at pp. 21-86, 21-87 and 29-1. [25] In this context, the replacement of the words “radio communication” with “telecommunication” should beunderstood as merely expanding the means of communicating a work — that is, from radio waves (“by radio communication”) to cableand other future technologies (“to the public by telecommunication”).

In our view, by substituting the word “telecommunication” in1988, Parliament did not intend to change the fundamental nature of the communication right, which had for over 50 years beenconcerned with performance-based activities. Instead, Parliament only changed the means of transmitting a communication. The word“communicate” itself was never altered. [26] Parliament’s addition of the phrase “to the public” to s. 3(1)(

f) also supports this

interpretation of the 1988amendments. Before 1988, there was no doubt that all communications were “to the public”, as the nature of a broadcast through radiowaves was necessarily public. The term “telecommunication”, however, risked introducing ambiguity into the Act, astelecommunication could also include private communications.

By adding the phrase “to the public” with the term “telecommunication”in 1988, Parliament clarified its intent to maintain the communication right as a category of performance right. [27] Therefore, we agree with Rothstein J. (at para. 98) that there is a “historic relationship” between the performanceright and the communication right in the Copyright Act, but we disagree with his conclusion that Parliament intended to sever thisrelationship based on the 1988 amendments. In our view, this historical connection between communication and performance still existstoday.

With respect, the Board ignored this connection when it concluded that transmitting a download of a musical work over theInternet could amount to a “communication”. [28] The Board’s conclusion was based in part on its erroneous view that a “download” is indistinguishable from a“stream”. Although a download and a stream are both “transmissions” in technical terms (they both use “data packet technology”), theyare not both “communications” for purposes of the Copyright Act.

This is clear from the Board’s definition of a stream as “atransmission of data that allows the user to listen or view the content at the time of transmission and that is not meant to be reproduced”(para. 15). Unlike a download, the experience of a stream is much more akin to a broadcast or performance.

[29] The Board also appears to have relied on Binnie J.’s observation in Society of Composers, Authors and MusicPublishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 [2004] 2 S.C.R. 427 (SOCAN v. CAIP), that awork has necessarily been “communicated” when, “[a]t the end of the transmission, the end user has a musical work in his or herpossession that was not there before” (at para. 45), and on CWTA v. SOCAN, where Sharlow J.A. evoked SOCAN v.

CAIP to hold that“[t]he word ‘communication’ connotes the passing of information from one person to another” (paras. 19-20). [30] As noted by Justice Rothstein, however, the comments in SOCAN v. CAIP were obiter, as the meaning of“communicate” in s. 3(1)(

f) was not directly in issue in that case. Neither SOCAN v. CAIP nor CWTA v. SOCAN examined thelegislative history behind the term “communicate” or the connection between communication and performance. [31] For the same reason, we cannot agree with Justice Rothstein’s dependence on the dictionary definition of the word“communicate” to mean any transmission of data, including a download which provides the user with a durable copy of the work.

Dictionaries, while often offering a useful range of definitional options, are of little assistance in identifying what a word means when itis orphaned from its context: Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 27; see alsoOntario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031, at para. 67 (per Gonthier J.). In our view, usingdictionary

definitions in this case has the effect of ignoring a solid line of legislative history connecting the term “communicate” toperformance-based activities. [32] The Board’s

interpretation of s. 3(1)(

f) also ignores the historic distinction between performance-based rights andreproduction-based rights, improperly extending the term “communicate” to capture the Internet delivery of permanent copies of a work. In our view, this

interpretation goes far beyond what the term “communicate” was ever intended to capture. [33] In enacting s. 3(1), Parliament distinguished between rights of reproduction and performance: 3.

(1) For the purposes of this Act, “copyright” means the sole right to produce or reproduce the work or anysubstantial part thereof in any material form whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial partthereof in public . . . . (Copyright Act, 1921) [34] This distinction between reproduction and performance in s. 3(1) has been maintained all the way through to thecurrent version of the Act. [35] Performing a work is fundamentally different than reproducing it. As this Court concluded in Bishop v.

Stevens, aperformance is impermanent in nature, and does not leave the viewer or listener with a durable copy of the work: The right to perform (including radio broadcast), and the right to make a recording, are separately enumerated in s. 3(1).They are distinct rights in theory and in practice . . . . [T]he rights to perform and to record a work are considered sufficiently distinctthat they are generally assigned separately, and administered by different entities. . . . . . . A performance is by its very nature fleeting, transient, impermanent.

When it is over, only the memory remains. . . .Furthermore, no imitation of a performance can be a precise copy. A recording, on the other hand, is permanent. It may be copied easily,privately, and precisely. Once a work has been recorded, the recording takes on a life of its own. . . . Once the composer has made orauthorized a recording of his work, he has irrevocably given up much of his control over its presentation to the public.

These are thereasons why the rights to perform and to record are recognized as distinct in the Act, and why in practice a composer may wish toauthorize performances but not recordings of his work. [Emphasis added; pp. 477-79.] [36] In Bishop, the alleged infringer argued that the “right to broadcast” a musical work under s. 3(1)(

f) included theincidental right to make an ephemeral copy for the sole purpose of facilitating the broadcast. This Court ultimately concluded that theright to perform — including the right to communicate — could not be understood to include the right to reproduce, since performingand communicating are different in nature from making a recording. [37] Even though Bishop interpreted the pre-1988 version of the Copyright Act (before the “telecommunication”amendment), the distinction between performance-based and reproduction-based rights established in s. 3(1) is evidenced in theprovisions of the current Act.

For example, in s. 2.2(1), the term “publication” includes “making copies”, but expressly excludes “theperformance in public, or the communication to the public by telecommunication” of a work. Similarly, the educational institutionsexception in s. 29.4(2) refers to the right to “reproduce” and the right to “communicate by telecommunication to the public” as distinctrights.

The same is true of s. 15(1), which categorizes neighbouring rights under the Act into two categories: the right to “communicate”and “perform” a performance, and the right to “reproduce” a fixation of the performance. [38] The distinction between performance and communication rights on the one hand and reproduction rights on the otheris also evident in the collective administration of copyright tariffs under the Copyright Act. In 1993, SOCAN — a performing rightssociety — was put in charge of administering the communication right in s. 3(1)(

f) in relation to musical works: S.C. 1993, c. 23, s. 3: seeMcKeown, at pp. 3-12, 27-2 and 27-3. These provisions are contained in a

section of the Act entitled “Collective Administration ofPerforming Rights and of Communication Rights”: ss. 67 to 68.2 (S.C. 1997, c. 24, s. 45): see McKeown, at p. 26-3.

Even the CopyrightBoard itself categorizes its decisions relating to musical works into two categories: “Public Performance of Music” and “Reproduction ofMusical Works”: http://www.cb-cda.gc.ca/decisions/index-e.html. [39] Therefore, the term “communicate” in s. 3(1)(f), which has historically been linked to the right to perform, should notbe transformed by the use of the word “telecommunication” in a way that would capture activities akin to reproduction. Suchtransformation would result in abandoning the traditional distinction in the Act between performance-based rights and rights ofreproduction.

There is no evidence either in 1988 or in subsequent amendments to the Act that Parliament intended such abandonment.

[40] SOCAN submits that the distinction between reproduction and performance rights in Bishop actually supports itsview that downloading a musical work over the Internet can attract two tariffs. Since reproduction and performance-based rights are twoseparate, independent rights, copyright owners should be entitled to a separate fee under each right. This is based on the Court’s reliancein Bishop, at p. 477, on a quote from Ash v.

Hutchinson & Co. (Publishers), Ltd., [1936] 2 All E.R. 1496 (C.A.), at p. 1507, per GreeneL.J.: Under the Copyright Act, 1911 [on which the Canadian Act was based], . . . the rights of the owner of copyright are set out.A number of acts are specified, the sole right to do which is conferred on the owner of the copyright.

The right to do each of these acts is,in my judgment, a separate statutory right, and anyone who without the consent of the owner of the copyright does any of these actscommits a tort; if he does two of them, he commits two torts, and so on. [Emphasis added.] [41] In our view, the Court in Bishop merely used this quote to emphasize that the rights enumerated in s. 3(1) aredistinct. Bishop does not stand for the proposition that a single activity (i.e., a download) can violate two separate rights at the sametime. This is clear from the quote in Ash v. Hutchinson, which refers to “two acts”.

In Bishop, for example, there were two activities: 1)the making of an ephemeral copy of the musical work in order to effect a broadcast, and 2) the actual broadcast of the work itself. In thiscase, however, there is only one activity at issue: downloading a copy of a video game containing musical works. [42] Nor is the communication right in s. 3(1)(

f) a sui generis right in addition to the general rights described in s. 3(1). The introductory paragraph defines what constitutes “copyright”. It states that copyright “means” the sole right to produce or reproducea work in any material form, to perform a work in public, or to publish an unpublished work. This definition of “copyright” isexhaustive, as the term “means” confines its scope. The paragraph concludes by stating that copyright “includes” several other rights, setout in subsections (

a) through (i). As a result, the rights in the introductory paragraph provide the basic structure of copyright. Theenumerated rights listed in the subsequent subparagraphs are simply illustrative: Sunny Handa, Copyright Law in Canada (2002), at p.195; see also Apple Computer Inc. v. Mackintosh Computers Ltd., (FC), [1987] 1 F.C. 173 (T.D.), at p. 197. Therental rights in s. 3(1)(

i) referred to by Justice Rothstein, for example, can fit comfortably into the general category of reproduction rights. [43] In our view, therefore, the Board’s conclusion that the Internet delivery of a permanent copy of a video gamecontaining musical works amounted to a “communication” under s. 3(1)(

f) should be set aside. [44] We would therefore allow the appeal with costs. The reasons of LeBel, Fish, Rothstein and Cromwell JJ. were delivered by [45] Rothstein J. (dissenting) — Under the Copyright Act, R.S.C. 1985, c. C-42 (the “Act”), s. 3(1)(f), a copyright holderhas the sole right to “communicate [his or her] work to the public by telecommunication” and to authorize any such communication.

Thequestion in this case is whether a musical work is “communicate[d] . . . by telecommunication” when a file containing the musical workis downloaded from the Internet. [46] When files containing copyright protected works are downloaded, copyright holders are entitled to compensation forthe reproduction of their works. This appeal concerns musical works contained in video games which may be downloaded from theInternet.

The appellants, the Entertainment Software Association and the Entertainment Software Association of Canada (collectively,the “ESA”), argue that works transmitted over the Internet by downloading should not give rise to further compensation under s. 3(1)(f). The respondent, Society of Composers, Authors and Music Publishers of Canada (“SOCAN”), says that reproduction andcommunication are different and independent rights under the Act and that copyright holders are entitled to remuneration for thecommunication of their works through Internet downloading. [47] My colleagues Abella and Moldaver JJ.

part company with me on some fundamental principles of copyright law. Inmy view, precedents of this Court have established the principles that must govern the analysis in this appeal. Copyright is a creature ofstatute (Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336, at para. 5; Compo Co. v. Blue CrestMusic Inc., (SCC), [1980] 1 S.C.R. 357, at p. 373; Bishop v. Stevens, (SCC), [1990] 2 S.C.R. 467, at p.477). Copyright is comprised of a bundle of independent statutory rights (Bishop v. Stevens, at p. 477; Compo Co. v. Blue Crest MusicInc., at p. 373).

Courts must give effect to these independent rights as provided by Parliament.

While courts must bear in mind that theCopyright Act “is . . . a balance between promoting the public interest in the encouragement and dissemination of works of the arts andintellect and obtaining a just reward for the creator”, which balance requires “not only . . . recognizing the creator’s rights but in givingdue weight to their limited nature” (Théberge, at paras. 30-31), courts must still respect the language chosen by Parliament — notoverride it. [48] In my respectful opinion, my colleagues’ approach sweeps away these well-established principles.

They start fromthe proposition that once the reproduction rights in the musical work contained in a video game are negotiated, “the owner of thecopyright in the musical work has no further rights when the game is sold” (Abella and Moldaver JJ., at para. 1).

They support theirargument by reference to the principle of technological neutrality: because the production and sale of a hard copy of the video gamewould only engage the right to reproduce the musical works it contains, the sale of a digital copy of the game, by transmission over theInternet, must also not trigger protected rights other than the right to reproduce. For my colleagues, the “Internet is simply atechnological taxi that delivers a durable copy of the same work to the end user” (para. 5).

They say that the question in this appeal is“whether the rights are nonetheless revived when the work is sold over the Internet instead of in a store” (para. 1). [49] Generally, a technologically neutral copyright law is desirable. However, technological neutrality is not a statutoryrequirement capable of overriding the language of the Act and barring the application of the different protected rights provided byParliament. My colleagues’ basic propositions pre-empt the application of other rights of the copyright holder to this set of facts anddivest these rights of their independent content.

There is no need to revive rights that have never been exhausted. [50] In many respects, the Internet may well be described as a technological taxi; but taxis need not give free rides. I. Facts and Procedural History

[51] On judicial review, the Federal Court of Appeal (“FCA”) upheld the determination by the Copyright Board that thedownload of a file containing a musical work is a “communicat[ion] . . . to the public by telecommunication” within the meaning of s.3(1)(

f) of the Act, entitling SOCAN members to compensation in accordance with an approved tariff. The ESA appeals to this Courtfrom the decision of the FCA. [52] The ESA is a coalition of video game publishers and distributors. Video games are entertainment softwareconsisting of millions of lines of software code. When installed and run on a computer, the software generates audiovisual effects inresponse to commands by the user. The audio component may include musical works as part of the game’s soundtrack. [53] Video games can be sold over the Internet.

Customers navigate to the website of an online game provider where thevideo game program is offered for sale, pay the purchase price and download the program. The site transmits a permanent copy of thesoftware to the customer’s hard drive. This mode of delivery of the purchased program competes with the traditional model, where thevideo game is stored on a CD or in a cartridge, requiring the customer to buy it at a store. [54] The customer must then install the program, either downloaded from the Internet or contained on the CD, on his orher computer.

Only after the installation is complete may the customer run the game, at which point, the audio and the visual effects ofthe software become perceptible. The game and its audio and visual effects are not perceptible during the transmission of the file fromthe vendor to the video game user, a fact that is said to be of crucial significance in this case. [55] It is standard practice within the video game publishing industry to negotiate clearance of copyright for thereproduction of the musical works incorporated in the games prior to their publication.

There is no dispute that once reproduction rightsare cleared, the owner of copyright in the musical work would have no further rights when the video game is sold to a customer at abricks-and-mortar store or if a CD containing the game is shipped through regular mail. [56] SOCAN is a collective society of composers, authors and publishers of music. It administers the right to perform inpublic and the right to communicate to the public by telecommunication the works covered by its members’ copyrights.

It files proposedtariffs with the Board and collects royalties, as set by the Board, on behalf of its members. [57] These proceedings involve proposed tariffs first filed by SOCAN in 1995 for various uses of musical worksconstituting, in SOCAN’s view, copyright protected communication of musical works to the public over the Internet. There wereobjections to the filed proposals. In 1996, the Board decided to deal with legal issues separately from the determination of the actualtariffs.

The first step was to “determine which activities on the Internet, if any, constitute a protected use [of SOCAN’s repertoire ofmusic] targeted in the tariff” (SOCAN Statement of Royalties, Public Performance of Musical Works 1996, 1997, 1998 (Tariff 22,Internet) (Re) (1999), (CA CB), 1 C.P.R. (4th) 417 (“Tariff 22 decision”), at p. 424). [58] On October 27, 1999 (the Tariff 22 decision), the Board issued what it termed its Phase I decision, dealing with legaland jurisdictional issues.

The Tariff 22 decision was ultimately appealed to this Court, but not on the issue of communication to thepublic by telecommunication now before this Court. However, in Society of Composers, Authors and Music Publishers of Canada v.Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427 (“SOCAN v. CAIP”), at para. 30, Binnie J. noted the Board’sconclusion that “an Internet communication occurs at the time the work is transmitted from the host server to the computer of the enduser, regardless of whether it is played or viewed at that time, or later, or never” (see Tariff 22 decision, at p. 450).

He found that thisparticular issue was “no longer contested”. [59] In 2005, SOCAN modified its proposed Tariff to divide it into seven categories, each dealing with a differentInternet-based activity. The sixth category applies to “Game Sites” and covers “communications of musical works as part of games,including gambling, from Sites or Services that consist predominantly of games . . .” (Statement of Proposed Royalties to Be Collected bySOCAN for the Public Performance or the Communication to the Public by Telecommunication, in Canada, of Musical or Dramatico-Musical Works (2005), 139 Can. Gaz.

I (Supp.), at p. 18). When the Board proceeded to Phase II of the process to establish a tariff forthe communication of musical works over the Internet for the years 1996 to 2006, the ESA argued that since the users can neither see,nor hear game software while it is being downloaded, “[t]he transmission solely involves a distribution of a copy of a work that isidentical to copies available on discs in stores. The transmission [is] thus not a ‘communication to the public’” (A.F., at para. 20(emphasis in original)). [60] The Board’s Phase II determination was rendered in two decisions.

In the first, issued on October 18, 2007 ((CA CB), 61 C.P.R. (4th) 353) (the “Tariff 22.A decision”), the Board rejected the ESA’s argument and confirmed itsprior conclusion that a download is a “communication”. While the Tariff 22.A decision dealt with the details of the tariffs applicable touses of music by online music services that offer catalogues of songs for downloading upon payment of the purchase price, the Boardheld that the legal principles established in that decision would also apply to other uses of music on the Internet.

The Board’s secondPhase II decision, issued on October 24, 2008, SOCAN Statement of Royalties, Internet ― Other Uses of Music, 1996-2006 (Tariffs 22.B-22.G) (2008), (CA CB), 70 C.P.R. (4th) 81 (the “Tariff 22.B-G decision”), established the details of the tariffsapplicable to other uses of music on the Internet, including use by game sites at issue in this appeal (Tariff 22.G). [61] A number of objectors applied to the FCA for judicial review on different issues, which the FCA dealt with inseparate decisions. Bell Canada v.

Society of Composers, Authors and Music Publishers of Canada, 2010 FCA 220, 409 N.R. 102 (“BellCanada”), was an appeal by online music services contesting the Board’s determination in the Tariff 22.A decision that a download of amusic file from the online music service’s website by the end consumer is a “communication to the public”. The FCA held that theBoard’s determination was a reasonable

interpretation of s. 3(1)(

f) of the Act. The FCA considered that SOCAN v. CAIP had fullyanswered the question of what constitutes a “communication” and accordingly confirmed that a download is a communication (para. 5). [62] As stated above, the ESA’s application for judicial review of the Tariff 22.B-G decision was dismissed by the FCA. On the issue of whether downloads of video games are communications to the public of the musical works they contain, the FCAreferred to its reasons in Bell Canada, that is, that a download of a file containing a musical work is a communication to the public bytelecommunication (2010 FCA 221, 406 N.R. 288, at para. 13).

II. Issue [ 63 ] The issue in this appeal is whether the transmission of a video game through an Internet download is a “communication” to the public within the meaning of s. 3(1) (

f) of the Act . If it is, SOCAN is entitled to royalties for the communication of the included musical works. III. Analysis A. Overview [ 64 ] The ESA submits that on reading s. 3(1) (

f) in its entirety, considering it in the context of the entire Act and in light of its legislative history, the provision “creates an exclusive right of public performance (or representation for works that are not publicly performed) delivered by means of telecommunication”. They say that to “communicate” must mean “to cause information in humanly perceivable form to be imparted to another person for immediate listening or viewing” (A.F., at para. 33 (emphasis added)).

The communication right was never meant to cover situations where durable copies of the copyrighted works are made available, which are already covered by the reproduction right and for which copyright holders are already compensated. Since the users can neither see nor hear game software while it is being downloaded, the transmission from the online game provider to the user does not constitute a communication to the public. The ESA further argues that the Act uses both the terms “communicate” and “transmit” and that the two cannot have the same meaning.

In their submission, the act of a game being downloaded by a user constitutes a transmission and not a communication. The ESA also relies on American jurisprudence and raises some “unintended consequences” of the decisions below. [ 65 ] In this appeal, the ESA does not advance arguments on whether, should the transmissions be found to be “communications” within the meaning of s. 3(1) ( f ), such transmissions would be communications “ to the public ”; this issue is dealt with in the companion case Rogers Communications Inc. v.

Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 35 , [2012] 2 S.C.R. 283. [ 66 ] SOCAN says that the decisions of the Board and of the FCA were correctly decided. In SOCAN’s view, to communicate means simply “to transmit, impart, make known or convey information” (R.F., at para. 32 (emphasis deleted)) and the ESA’s submissions would artificially restrict the ordinary meaning of the word.

Further, SOCAN says that the ESA’s argument ignores the basic principle of copyright law that the copyrights granted in s. 3(1) for reproduction, performance and communication of a work are separate and distinct rights (R.F., at para. 9). B. Standard of Review [ 67 ] For the reasons explained in Rogers , at paras. 10-16, the applicable standard of review is correctness. C. Whether Transmitting Musical Works Through Downloads Over the Internet Is “Communicating” (1) Section 3(1)(

f) and

Section 2 [ 68 ] This appeal requires defining the right to “communicate . . . by telecommunication” in the Copyright Act . The ESA urges a definition of “communicate . . . by telecommunication” as “to cause information in humanly perceivable form to be imparted to another person for immediate listening or viewing ” (A.F., at para. 33 (emphasis added)). [ 69 ] The exclusive right of the copyright holder to “communicate . . . to the public by telecommunication” is provided in s. 3(1) (

f) of the Act : 3.

(1) For the purposes of this Act , “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform 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 to the public by telecommunication, . . . and to authorize any such acts. [ 70 ]

Section 2 of the Act defines “telecommunication”: “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; It is not disputed that transmissions in the digital environment are “telecommunications”.

(2) The Approach to Statutory

Interpretation [ 71 ] The Copyright Act must be interpreted in accordance with the general rules of statutory

interpretation: “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” ( CCH Canadian Ltd. v. Law Society of Upper Canada , 2004 SCC 13 , [2004] 1 S.C.R. 339, at para. 9 , citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).

(3) The Precedents

[ 72 ] The word “communicate” is not defined in the Act . I therefore start with the dictionary meaning of the word. The Oxford English Dictionary (online) defines the verb “communicate” as “[t]o impart (information, knowledge, or the like) . . .; to impart the knowledge or idea of (something), to inform a person of; to convey, express; to give an impression of, put across”. The Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007), vol. 1, at p. 466, includes the following definition: to “[i]mpart, transmit”.

The Merriam-Webster’s Collegiate Dictionary entry is defined as “ to convey knowledge of or information about : make known” ((11th ed. 2003), at p. 251). There is no suggestion in these

definitions that “to communicate” cannot mean “to transmit”, and indeed, the Shorter Oxford English Dictionary expressly includes in the definition of “communicate”, “transmit”. [ 73 ] Although the question was not directly in issue in that case (see para. 30), Binnie J. in SOCAN v. CAIP endorsed the ordinary definition of “communicate” as the appropriate

interpretation of the word in s. 3(1) (

f) of the Copyright Act : The Board ruled that a telecommunication occurs when the music is transmitted from the host server to the end user. I agree with this. . . . The word “communicate” is an ordinary English word that means to “impart” or “transmit” ( Shorter Oxford English Dictionary on Historical Principles (5th ed. 2002), vol. 1, at p. 463). [paras. 42 and 46] [ 74 ] Since SOCAN v. CAIP , the FCA has had the occasion to deal directly with the meaning of the right to “communicate” under s. 3(1) (

f) in Canadian Wireless Telecommunications Assn. v. Society of Composers, Authors and Music Publishers of Canada , 2008 FCA 6 , [2008] 3 F.C.R. 539 , leave to appeal refused, [2008] 2 S.C.R. vi (“ CWTA ”). The question in that case, answered in the affirmative, was whether a person communicates to the public the musical works contained in ringtones when members of the public download the ringtones for their mobile phones.

Sharlow J.A. rejected the argument that a transmission is not the same thing as a communication because “‘communication’ must be understood to include only a transmission that is intended to be heard or perceived by the recipient simultaneously with or immediately upon the transmission” (para. 18). She wrote: In my view, the applicants are proposing a meaning of the word “communication” that is too narrow. The word “communication” connotes the passing of information from one person to another. A musical ringtone is information in the form of a digital audio file that is capable of being communicated.

The normal mode of communicating a digital audio file is to transmit it. The wireless transmission of a musical ringtone to a cellphone is a communication, whether the owner of the cellphone accesses it immediately in order to hear the music, or at some later time . The fact that the technology used for the transmission does not permit the cellphone owner to listen to the music during the transmission does not mean that there is no communication. In my view, in the context of a wireless transmission, it is the receipt of the transmission that completes the communication.

This conclusion accords with the [ SOCAN v. CAIP ] case (cited above). In that case Justice Binnie, writing for the majority, said that the transmission of information over the Internet is a communication once the information is received (see paragraph 45). . . . [I]t is undoubtedly a true statement. [Emphasis added; paras. 19-20.]

(4) The ESA’s Arguments for Not Following SOCAN v. CAIP and CWTA [ 75 ] The ESA argues that SOCAN v. CAIP (to the extent that it addressed the issue) and CWTA should not be followed. (a) “Communicate” and “Transmit” [ 76 ] The ESA first argues that there must be some difference between the words “communicate” and “transmit”. The two words are not used interchangeably in the Act and if Parliament used both words, it intended them to have different meanings.

On this basis, the ESA submits that to “communicate to the public” means “more than the [mere] transmission of a file from one point to another point without that file being seen or heard” (A.F., at para. 73). Therefore, a download is not a communication within the meaning of s. 3(1) ( f ), but a mere transmission. [ 77 ] I do not find this argument compelling. Parliament is presumed to use words in their ordinary meaning: R. Sullivan, Statutory

Interpretation (2nd ed. 2007), at p. 49. As noted above, to “communicate” means to “impart” or “transmit”. The Oxford English Dictionary (online) defines “transmit” as: “[t]o cause (a thing ) to pass, go, or be conveyed to another person, place, or thing; to send across an intervening space; to convey, transfer; . . . [t]o convey or communicate (usually something immaterial) to another or others” (emphasis added); and, in a more technical sense: “[t]o send out electric signals or electromagnetic waves corresponding to (an image, a programme, etc.).” The

definitions of “transmit” in the Merriam- Webster’s Collegiate Dictionary are: to send or convey from one person or place to another . . . to send out (a signal) either by radio waves or over a wire. I see no reason why, having regard to context, the meaning of both words cannot overlap. [ 78 ] As set out above, s. 2 of the Act defines “telecommunication” as “any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system”.

This definition equates the term “telecommunication” with the transmission of certain subject matter by electromagnetic system. The prefix “tele” simply means “to a distance”. So, “telecommunication” means communicating to a distance by the means specified in the Act. It would seem odd that “telecommunication” and transmission by electromagnetic system are interchangeable in the Act but that “to communicate” and “to transmit” would not be. The more obvious

interpretation would be that for the purposes of s. 3(1) (

f) of the Act, the exclusive right of the copyright holder to communicate works to the public by telecommunication is simply to transmit those works to the public by electromagnetic system, including the Internet. [ 79 ] The above

definitions of “communicate” and “transmit” and the context in which the words are used in the Act do

not support the ESA’s conclusion that to “communicate” in s. 3(1)(

f) must necessarily mean to transmit information in a humanlyperceptible form for immediate perceiving and listening. Even accepting that to communicate means to impart an idea, there is norequirement that the idea be perceived and heard immediately. [80] The ESA supports its argument that the words “transmit” and “communicate” must have different meaningsprimarily by reference to s. 2.4(1)(c).

Section 2.4(1)(

c) provides: 2.4

(1) For the purposes of communication to the public by telecommunication, . . . (

c) where a person, as part of (

i) a network, within the meaning of the Broadcasting Act, whose operations result in the communication ofworks or other subject-matter to the public, or (ii) any programming undertaking whose operations result in the communication of works or other subject-matter to the public, transmits by telecommunication a work or other subject-matter that is communicated to the public by another personwho is not a retransmitter of a signal within the meaning of subsection 31(1), the transmission and communication of that work or othersubject-matter by those persons constitute a single communication to the public for which those persons are jointly and severally liable. [81] The ESA argues that the words “transmit” and “transmission” appear twice and the word “communicate” five times,and that this means that they must have different meanings.

It says that transmitting is merely delivery or receipt of information or databeing conveyed; that the term “communicate” pertains to what happens after transmission; and that this implies that the difference is thata transmission is not the conveyance of information in a humanly perceivable form. As a result, a transmission does not implicate s.3(1)(f), because s. 3(1)(

f) uses the term communicate which, by contrast, does imply conveyance in humanly perceivable form. Therefore, since the communication only occurs after the transmission, a download does not give rise to any entitlement under s. 3(1)(f). [82] This argument ignores the context and purpose of s. 2.4(1)(c). This

section was introduced in 1988 in order toreverse the holding in Composers, Authors and Publishers Assoc. of Canada Ltd. v. CTV Television Network Ltd.,(SCC), [1968] S.C.R. 676 (“CAPAC”), that CTV’s transmissions of programs to its affiliated stations, for further broadcasting to thepublic by the affiliated stations, did not engage the right to communicate to the public in s. 3(1)(f), because such transmissions remainedwithin the private realm (see J. S. McKeown, Fox on Canadian Law of Copyright and Industrial Designs (4th ed. (loose-leaf)), at p. 21-90).

In the context of s. 2.4(1)(c), a “transmission” describes conveying works within a network or programming undertaking before thework is conveyed to the public, while a “communication” is the conveyance of the work “to the public” by another actor within thenetwork or programming undertaking. Without s. 2.4(1)(c), only the latter act — the communication to the public — would engage s.3(1)(f); but a private transmission between affiliates would remain outside of copyright protection.

The effect of s. 2.4(1)(c), where itapplies, is to make the transmission and the communication a single act of communication to the public, so that both the person whotransmits the work and the person who communicates the work to the public are jointly and severally liable for the act of communicationto the public. [83] All that can be teased out of s. 2.4(1)(

c) is that “communication to the public” is the phrase used to designateinstances where copyright protection is engaged, and not that “communication” means a conveyance of information in a humanlyperceivable form. On the other hand, “transmit” or “transmission” are terms designating situations that do not engage copyrightprotection under s. 3(1)(f). I agree with the ESA that s. 2.4(1)(

c) suggests that under the Act, the words “communicate” and “transmit”are not used interchangeably. But the provision does not suggest that the words refer to different types of conveyances. Rather, thedistinction is that the words are used in conjunction with different types of recipient and different legal significance. Unless thetransmission is combined with a communication to the public, s. 3(1)(

f) would not attach to the transmission. When the transmission isultimately a communication to the public, s. 2.4(1)(

c) provides that the transmission and the communication to the public are a singlecommunication to the public which does attract copyright under s. 3(1)(f). Indeed, the word “communicate” is consistently used inconjunction with the words “to the public” throughout the Act. The ESA’s separating the word “communicate” from the words “to thepublic” to give it an independent meaning different from that of “transmit” is not supported by Parliament’s intention in enacting s.2.4(1)(c). The words of s. 2.4(1)(c), when read in context, do not support the distinction argued by the ESA. (

b) The CAPAC Decision [84] The ESA relies on this Court’s decision in CAPAC for the proposition that to communicate means disseminatingperformances to the public for immediate listening and not merely sending signals that may be perceived later. However, thisjurisprudence is of little avail to the ESA. [85] As noted above, in CAPAC, this Court was asked to determine whether the transmission of television programscontaining musical works by CTV to its affiliated stations, for broadcasting to the public by the affiliates, constituted “communicatingthe same by radio communication” (at p. 679),

an act protected under s. 3(1)(

f) as it read at that time. [86] It should first be noted that CAPAC interpreted provisions of the Act that have since been amended in a way relevantto the scope of s. 3(1)(f), as will be discussed later. In any event, in CAPAC, the ratio of the Court’s decision was that CTV’stransmissions of recorded TV programs containing music to its affiliates were not communications of musical works by radio-communication.

Rather, as CTV was transmitting performances of musical works (e.g., in an ordinary TV program) and not the musicalworks themselves (e.g., the sheet of music), s. 3(1)(f), which did not apply to performances of musical works, was not engaged. It isimportant to note that this distinction arose from the definition of “musical work” in the Act as it read at the time and is no longerapplicable.

[87] Nonetheless, the ESA relies on some comments of Pigeon J., at pp. 681-82 of CAPAC, involving an analysis ofArticle 11bis of the Berne Convention for the Protection of Literacy and Artistic Works, 828 U.N.T.S. 221, on which s. 3(1)(

f) wasbased. The ESA says that this analysis demonstrates that a communication is more than sending signals, which is all that occurs whenworks are downloaded as in the case now before the Court. Rather, the ESA says that

Article 11bis contemplates public performancesby broadcasting, in other words, communications in humanly perceptible form. Therefore, a “communicat[ion]” within the meaning of s.3(1)(

f) must also be a conveyance of information in humanly perceptible form. [88] However, the passages of Pigeon J.’s judgment note that “‘communication’ does not usually mean ‘a performance’[but that] it is apt to include performances” (p. 681 (emphasis added)). The necessary implication of these words is that“communication” is a broader term than “performance”. Therefore, Pigeon J.’s analysis does not support the ESA’s contention that acommunication is necessarily a performance or necessarily more than sending signals.

(5) Whether “Communicating” is “Performing” a Work at a Distance [89] The ESA further argues, based on the legislative history of s. 3(1)(f), that the communication right is only a variationof the performance right, being the right to perform a work to a distant audience. Because a performance, in the ESA’s submission, is,by nature, a transient event that cannot result in the transmission of a durable copy of the work to the audience, downloads cannot beperformances and, therefore, cannot be communications. [90] I digress briefly to point out that the structure of s. 3(1) implies that the communication right in paragraph (

f) is aself-standing right independent of the performance right in the introduction of the section. The first lines of the English version of s. 3(1)provide that “copyright” . . . means the sole right to produce or reproduce the work . . ., to perform the work . . . in public or . . . to publish thework . . . and includes the sole right . . . There then follow specific rights listed as paragraphs (

a) to (i). Paragraph (

f) provides for the sole right to “communicate the work to thepublic by telecommunication”. [91] While the use of the word “includes” could indicate that the rights listed in paragraphs (

a) to (

i) are instances of oneof the rights in the opening words of s. 3(1), the context indicates otherwise. Several of the listed rights are clearly outside of the right toproduce or reproduce, perform or publish. For example, paragraph (

i) provides for the right to rent out a sound recording embodying amusical work. It is difficult to see how this right fits within the right to produce or reproduce, perform or publish the work. Indeed, itwould be contrary to Théberge, in particular at paras. 42 and 45, where the majority of this Court held that a “reproduction” within themeaning of the Act requires a multiplication of copies. All the prerogatives of the copyright holder in s. 3(1) are better considered asseparate and distinct rights (Bishop v. Stevens, at p. 477, per McLachlin J.; Compo Co. v. Blue Crest Music Inc., at p. 373, per Estey J.). [92] This

interpretation of the English version of s. 3(1) is consistent with the French version of the text, which states that“[l]e droit d’auteur sur l’œuvre comporte le droit exclusif de produire ou reproduire . . . l’œuvre, [de la représenter ou de la publier]; cedroit comporte, en outre, [les droits énumérés aux al.

a) à i)].” The use of the phrase “en outre” — in addition — indicates paras. (

a) to(

i) are in addition to those in the opening words. [93] Nonetheless, the ESA relies on legislative history in order to confine the scope of the right to communicate to thepublic to performing a work to a public in a distant place, in a humanly perceptible form, as distinct from a download. [94] The Canadian Act was based on the Berne Convention of 1886, as revised in Berlin in 1908 (see Bishop v. Stevens, atp. 473). The revised Berne Convention comprised certain public performance rights in certain types of works. However, the advent ofthe radio warranted another revision of the Convention. In 1928,

Article 11bis was added to the text, which guaranteed that:

Article 11bis

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the communication of their worksto the public by radiocommunication. [95] In 1931, Canada implemented the revision through the then s. 3(1)(f), which provided for a right, “[i]n case of anyliterary, dramatic, musical or artistic work, to communicate such work by radio communication” (Copyright Amendment Act, 1931, S.C.1931, c. 8) (see CAPAC, at pp. 680-81). broadcasting, leaving transmissions by cable outside of copyright protection.

This technology-specific communication right wasamended to the technologically neutral right to “communicate . . . to the public by telecommunication” to reflect the obligations enteredinto by Canada under the North American Free Trade Agreement, Can. T.S. 1994 No. 2 (Canada-United States Free Trade AgreementImplementation Act, S.C. 1988, c. 65, ss. 61 and 62). The change from radiocommunication to telecommunication and furtheramendments in 1993 meant that Canadian cable companies which previously avoided any payment of royalties under the“radiocommunication” right, and other users, were now caught by the Act: S.

Handa, Copyright Law in Canada (2002), at p. 320; D.Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at p. 90. [97] The ESA argues that from the outset, s. 3(1)(f), as well as its Berne progenitor

Article 11bis, were meant to providebroadcasting rights the nature of which is “to deliver content [i.e. performances of works] to a public audience for immediate listening orviewing” (A.F., at para. 40). In the ESA’s submission, the 1988 amendment from “radiocommunication” to “telecommunication” didnot change the fundamental nature of the communication right, that is, that it was concerned with broadcasting. The word“communicate” in the English version was not amended, although the means by which the communication may be made were expanded(A.F., at para. 52). The verb “transmettre”, used in the French version of s. 3(1)(

f) prior to the 1988 amendments, was replaced by

“ communiquer ”. [ 98 ] There is little doubt that a historic relationship between the right of public performance and the ri

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