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Two cases bubbling up from last years round of judicial review decisions concerning the apparently never ending SOCAN Tariff 22 saga concern whether certain activity on the internet constitutes a "communication to the public by telecommunication". These applications are brought by the ESA and Rogers et al.

Both leave applications involve the issue of whether the delivery of copyrighted material as a download over the interenet to the public based upon one at a time request constitutes a "communication to the public by telecommunication" - thus invoking an additional payments on top of other payments that would have to be made. Thus, the proverbial and quintessentially Canadian notion of multiple layering of rights and costs - as reinforced by the Copyright Board's consistent decisions - is involved, along with a fundamental question of technological neutrality. That is, why should it cost more to deliver a  the same song from the same party to the same consumer via the internet rather than on a a plastic CD?

While this sounds like a perfect case for the Court to grant leave, one problem may be that that there is now a lot of water already under the bridge stemming from the rather surprising concession a few years ago by the wireless companies in the Copyright Board's ring tone case that "downloading a ringtone is a communication by telecommunication".

In any event, we shall learn this Thursday, March 24, 2011 whether these leave to appeal applications will be granted.

Meanwhile, still no word on whether CMEC's leave to appeal on fair dealing in the educational context will be granted. Curiously, the application has still not not gone forward to a panel for a decision. One would expect that this case would be heard by the Court, along with the SOCAN "previews" case, to which it is the other side of the coin and for which leave has already been granted.

HK

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