Lowly Legal Lout Lauds Lords’ Law (Thoughts on ESA v SOCAN)

At the risk of embarrassing myself, I am going to give a summary of the case and my opinion on the judgment and its dissent.

Majority’s Argument

The basic facts were that SOCAN administers the right to “communicate” musical works for copyright holders and it applied to the Copyright Board for a tariff under s 3(1)(f) of the Copyright Act to cover downloads of musical works over the Internet. The case turned on whether the definition of “communication” under that provision includes downloading video games containing musical works.

The crux of the majority’s argument was that, substantively speaking, the sale of a video game in from a physical retailer is no different from the sale of the game online. The majority viewed the board’s tariffs violated the principle of technological neutrality which “requires the Act apply equally notwithstanding the technological diversity of different forms of media”. Downloading reproduces a copy of a work and this is reflected in the Copyright Board’s definition of “download” which is “a file containing data … the user is meant to keep as his own”.

The majority goes on to refer to other old case law and the 1921 Copyright Act in relation to what “communication” meant; to the majority “communication” was historically intended to be closer to a live performance. “Radio communication” and “telecommunication” were intended, then, to mean an ethereal broadcast that is not intended to be immortalized by recording once the broadcast was released. The court recognized this in the Bishop case where the alleged infringer of copyright created a copy of a work in order to make a broadcast.

Dissent’s Argument

The dissent points out that, while technological neutrality is ideal, it does not override the language of the Copyright Act. The dissent began with an analysis of the dictionary definition of “communicate” which can be interpreted to include any and all transmissions. A download is a transmission, so the dissent found that it was a communication.

The dissent goes through their own cherry-pick of the case law. In CWTAssociation v SOCAN, the GCA held that a ringtone in mobile phones amounted to a communication. They used the CAPAC case to support that communications includes performances but are not limited to them.

My argument

If one starts with the strict definition by the dissent uses for “communication” then it should follow that the download of a musical file does amount to a “communication”. However, what also should follow from that is that the transfer of a physical medium containing the same physical file should also amount to a “communication”. Going by the same quotations from the Oxford Dictionary the dissent used in para 72, to “communicate” means “to impart (information, knowledge, or the like) …; to impart the knowledge or idea of (something), to inform person of; to convey, express; to give an impression of, put across”.

Imparting information can come in many forms including the download of a musical file as well as the copying and sending of a physical letter containing the music note sheet and lyrics of that piece of music. The transfer of a physical medium containing that musical file fits squarely in that spectrum of letter to file and should also fall under the definition of “communicate” in the sense that it “imparts information”. However, the creation of the musical file in that physical medium is as much of a reproduction as the creation of a musical file during a download. The logical conclusion to the dissent’s starting point is that all “reproductions” are necessarily “communications” if copies from that reproduction are disseminated. As such, the purchase of a video game that contains the musical file is as much of a “communication” as the download of the same game containing the same file.

Regardless of how important one sees technological neutrality, this would be an absurd interpretation of what the legislature had intended by enumerating “reproduction” separately from “communication”. The legislature intended for the immortalization of a piece of expression to be different from a communication that is lost on expression and different rights to those two different categories of activities.