Entertainment Law News: Rogers Communication v SOCAN – a Lesson in On-Demand Streaming Media

Added on Friday, March 22, 2013

Spotify. Deezer. 8Tracks. Grooveshare. Last.FM. Pandora. Jamengo. Rdio. Songza.

What do these websites have in common? Well, they all feature online music services that allow on-demand streaming (& some downloading) of files holding musical works. With the Supreme Court of Canada (‘SCC’) having recently held that a ‘download’ is merely a reproduction and cannot therefore amount to a ‘communication to the public’ (thereby falling outside the scope of the Copyright Act), Rogers v SOCAN provided the Court with an opportunity to determine whether some forms of online streaming media fall within the ambit of the ‘Act’.

Setting aside the pertinent legal arguments for a moment, what makes these types of cases so interesting is that they exemplify the ongoing clash between creative artists and emerging technologies. In our case, Rogers Communication develops & promotes an online music service that offers customers the option of downloading and/or streaming media files to their devices, while SOCAN (‘Society of Composers, Authors, and Music Publishers of Canada’) seeks to protect Canadian artists by arguing for tariffs to be imposed on the communication of musical works over the internet. The legislation controlling the issue is s 2 & s 3. 1(f) of the ‘Act’, with the most relevant portions reading as follows:

2. “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”, 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thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right…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

While the main issue on appeal is whether streaming music files over the internet constitutes a communication ‘to the public’, the finer points of the debate have wider implications for both present and future technologies. If each individual user has to individually trigger the online service in order to have the selected media streamed on-demand, is that enough for the transaction to be categorized as a ‘public’ communication? In other words, does the use of an online media service make the triggered request any more or less public? Counsel for Rogers argued that the transaction should be construed as being strictly between the user & the service provider, falling outside the copyright holder’s exclusive right to communicate the work to the public (thereby preventing tariffs form being imposed). SOCAN on the other hand argued that merely offering the media to anyone with internet access is enough for the transaction to be sufficiently ‘public’. In other words, the parties to the transaction are irrelevant. It’s the ease of access to the consumer and the public nature of the offering that is important.

In a unanimous ruling, the Court affirmed the decision of the Federal Court of Appeal and disposed of the argument that s. 3 (f) did not apply to on-demand services because they could be construed as a private transactions. Even if the media is accessible at different times and locations, the fact that the service is offered to anyone with an internet connection is sufficient enough in the Court’s view to be considered a communication to the public. Furthermore, the decision also serves to reinforce the argument that the ‘Act’ is and should remain media neutral. Protection is not exclusive to any particular form of existing technologies and the legislation is flexible enough to include future technologies as well. As such, the copyright holder can continue to profit off of their creations despite the constant evolution of media communications.

While this decision is confined strictly to the issue of music on-demand, you can’t help but notice the parallels between this case and other forms of online media. If a user were to upload a film onto YouTube for example, does the fact that the media needs to be requested on an individual basis prevent it at all from being considered a communication to the public? According to this case, probably not.

Either way, the implications for other on-demand streaming media services such as Hulu & Netflix cannot be discounted. Furthermore, with the rise of cloud storage solutions with Apple, Microsoft’ Sky Drive, and Drop Box, it is not exactly clear whether these wireless storage services are of a sufficiently ‘public’ nature. As long as the content uploaded to these devices remains accessible only by the individual who puts them there, the lack of access by the general public may prevent these new storage solutions from being caught by the ‘Act’ in the future.

– Josh Hemmings is an up-and-coming Toronto entertainment lawyer and one of our amazing student volunteers.

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