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Federal Court of Appeal Upholds Ringtone Decision

By Michael Geist

The Federal Court of Canada has issued its decision (not yet online) in the judicial review of the Copyright Board of Canada's ringtone decision.  The court upheld the decision, marking a big win for SOCAN and a loss for the wireless providers (CWTA, Bell Mobility, Telus) who challenged the Board's decision.  The court addressed two primary issues - first, whether the transmission of a ringtone to a cellphone is a "communication" under the Copyright Act and second, whether it is a "communication to the public."  While the wireless carriers argued that a communication must only include a transmission that is intended to be heard simultaneously or immediately upon transmission, the court disagreed, ruling that "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 potentially more important line of reasoning involves whether the transmission of the ringtone is a "communication to the public." 

The wireless providers argued that:

"when a wireless carrier offers to all of its customers an opportunity to purchase ringtones, the fact that the customers respond to the offer one by one, and receive copies of the ringtones by wireless transmission one by one, necessariliy means that each transmission is a private communication, and therefore there is no communication of [it] to the public.  Put another way. . . a series of identical communications, no matter how numerous, cannot be a communication to the public if each communication is initiated by the recipient's request."

The court rejected this argument as well, concluding that:

"the transmission of a television program is a performance in public, even if no one is watching it or everyone who is watching it is doing so in private, because it is made available to a sufficiently large and diverse group of people.  Similarly, in this case all of the customers of a wireless carrier (that is, all members of the relevant segment of the public) have access to all of the ringtones offered by that wireless carrier.  The fact that the ringtones are offered to the public, or to a significant segment of the public, supplies the requisite degree of "openness."

This could prove important for two reasons.  First, there is an obvious peer-to-peer parallel.  While some have tried to argue that peer-to-peer file sharing constitute private transmissions, this reasoning suggests that a series of one-to-one transmissions can still be a communication to the public where the content is made available to all.  This does not affect the download side of P2P, but it reinforces the potential infringement for making content available (uploading) on P2P networks.  Second, one of the key elements in a future copyright bill designed to bring Canada into compliance with the WIPO Internet Treaties is the "making available" right.  There have been some arguments that Canada already complies with this element of the treaty and that no new provisions are needed.  This decision moves us a further step down that road as the Court's analysis looks an awful lot like a making available right.

Full post as published by Michael Geist on January 09, 2008 (boomark / email).