Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers
Encyclopedia
Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers 2 S.C.R. 427, - also known as the Tariff 22 case - is a leading decision by the Supreme Court of Canada
on ISP
liability for copyright infringement
. The Court found that there is no liability for information found in cache
s. An ISP's liability depends on whether it limits itself to "a conduit" or a content-neutral function and is not dependent on where the ISP is located.
("SOCAN") applied for a royalty tariff to the Copyright Board of Canada
that would allow them to collect royalties for copyrighted materials transferred over the internet. In rebuttal, the Canadian Association of Internet Providers claimed that they served only as intermediaries and could not be held liable.
In 2002, the Federal Court of Appeal
held that an ISP could rely on the "intermediary exception" found in section 2.4(1)(b) that absolved carriers who only pass information through their system from liability. However, this exception did not apply for caching of information as doing so was considered more than just relaying information. Thus an ISP who refuses to remove copyrighted material from its servers after given reasonable opportunity to do so could be held liable. Lastly, the Court of Appeal found that the tariff should not be limited to material originating from Canada alone.
with McLachlin C.J., Iacobucci, Major, Bastarache, Arbour, Deschamps and Fish JJ. concurring. A minority opinion was given by LeBel J.
Binnie first examined the applicability of the Copyright Act. It depends on whether there is a "real and substantial connection
" between Canada and the transmission source, Binnie claims. This would mean that the Act applies to communications received in or originating from Canada.
Turning to the liability of the ISPs, Binnie examined the policy reason behind section 2.4(1)(b) of the Copyright Act ("intermediary exception"). He notes that its purpose is to encourage intermediaries to improve their operations without fear of infringement. Thus ISPs can benefit from the intermediary exception if they limit their role to one of "conduit" and do not perform any acts related to content. Moreover, an ISP must only provide "means" to communicate that are "necessary".
Binnie adopted the Board's broad meaning the of the word "means" as including routers and the accompanying software, hosting, and connectivity services.
Binnie examines the meaning of "necessary" as it applies to a provider's cache. He finds that a cache copy of a communication is content-neutral and is dictated by the technical requirements of the technology. Thus so long as it is for the purposes of "economy and efficiency" it does not make the role of the provider less of an intermediary. Therefore an ISP can seek protection under section 2.4(1)(b) ("intermediary exception").
In concluding, Binnie notes that it is impossible to impute actual knowledge on an ISP of a copyright violation, and thus cannot impose liability. If an ISP received notice that
However, in obiter Binnie further suggested
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on ISP
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
liability for copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
. The Court found that there is no liability for information found in cache
Cache
In computer engineering, a cache is a component that transparently stores data so that future requests for that data can be served faster. The data that is stored within a cache might be values that have been computed earlier or duplicates of original values that are stored elsewhere...
s. An ISP's liability depends on whether it limits itself to "a conduit" or a content-neutral function and is not dependent on where the ISP is located.
Background
In 1995 the Society of Composers, Authors, and Music Publishers of CanadaSociety of Composers, Authors, and Music Publishers of Canada
SOCAN is the Canadian copyright collective for the right to communicate to the public and publicly perform musical works...
("SOCAN") applied for a royalty tariff to the Copyright Board of Canada
Copyright Board of Canada
The Copyright Board of Canada is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works, when the administration of such copyright is entrusted to a collective-administration society...
that would allow them to collect royalties for copyrighted materials transferred over the internet. In rebuttal, the Canadian Association of Internet Providers claimed that they served only as intermediaries and could not be held liable.
In 2002, the Federal Court of Appeal
Federal Court of Appeal (Canada)
The Federal Court of Appeal is a Canadian appellate court that hears cases concerning federal matters arising from certain federal Acts. The court was created on July 2, 2003 by the Courts Administration Service Act when it and the Federal Court were split from its predecessor, the Federal Court of...
held that an ISP could rely on the "intermediary exception" found in section 2.4(1)(b) that absolved carriers who only pass information through their system from liability. However, this exception did not apply for caching of information as doing so was considered more than just relaying information. Thus an ISP who refuses to remove copyrighted material from its servers after given reasonable opportunity to do so could be held liable. Lastly, the Court of Appeal found that the tariff should not be limited to material originating from Canada alone.
Reasons of the court
The Court's opinion was written by Binnie J.Ian Binnie
William Ian Corneil Binnie was a puisne justice of the Supreme Court of Canada, serving from 1998 to 2011. Of the justices appointed to the Supreme Court in recent years, he is one of the few to have never sat as a judge prior to his appointment.- Personal life and career as lawyer :Binnie was...
with McLachlin C.J., Iacobucci, Major, Bastarache, Arbour, Deschamps and Fish JJ. concurring. A minority opinion was given by LeBel J.
Binnie
To begin, Binnie notes the huge capacity of the internet to disseminate knowledge and it should be encouraged; however, a balance is difficult to find.Binnie first examined the applicability of the Copyright Act. It depends on whether there is a "real and substantial connection
Real and substantial connection
In Canadian law, a real and substantial connection or the real and substantial connection test is a legal principle used to determine whether a subject matter falls within a jurisdiction. The phrase was first adopted in Canada in the Supreme Court of Canada decision of ...
" between Canada and the transmission source, Binnie claims. This would mean that the Act applies to communications received in or originating from Canada.
Turning to the liability of the ISPs, Binnie examined the policy reason behind section 2.4(1)(b) of the Copyright Act ("intermediary exception"). He notes that its purpose is to encourage intermediaries to improve their operations without fear of infringement. Thus ISPs can benefit from the intermediary exception if they limit their role to one of "conduit" and do not perform any acts related to content. Moreover, an ISP must only provide "means" to communicate that are "necessary".
Binnie adopted the Board's broad meaning the of the word "means" as including routers and the accompanying software, hosting, and connectivity services.
Binnie examines the meaning of "necessary" as it applies to a provider's cache. He finds that a cache copy of a communication is content-neutral and is dictated by the technical requirements of the technology. Thus so long as it is for the purposes of "economy and efficiency" it does not make the role of the provider less of an intermediary. Therefore an ISP can seek protection under section 2.4(1)(b) ("intermediary exception").
In concluding, Binnie notes that it is impossible to impute actual knowledge on an ISP of a copyright violation, and thus cannot impose liability. If an ISP received notice that
- someone might be using neutral technology to violate copyright (as with the photocopier in the CCH case) is not necessarily sufficient to constitute authorization, which requires a demonstration that the defendant did "(g)ive approval to; sanction, permit; favour, encourage" (CCH, at para. 38) the infringing conduct.
However, in obiter Binnie further suggested
- I agree that notice of infringing content, and a failure to respond by "taking it down" may in some circumstances lead to a finding of "authorization"... An overly quick inference of "authorization" would put the Internet Service Provider in the difficult position of judging whether the copyright objection is well founded, and to choose between contesting a copyright action or potentially breaching its contract with the content provider. A more effective remedy to address this potential issue would be the enactment by Parliament of a statutory "notice and take down" procedure as has been done in the European Community and the United States.
LeBel
LeBel J. agreed with Binnie's conclusion but took issue with the test for determining the location of an internet communication under the Copyright Act (the "real and substantial connection" test). Rather, he agrees with the Copyright Board's decision to only apply to providers located in Canada. He finds the board's test to be more in-line with international treaties and diminishes privacy concerns.See also
- List of Supreme Court of Canada cases (McLachlin Court)
- Theberge v. Galerie d'Art du Petit-Champlain
- CCH Canadian Ltd. v. Law Society of Upper CanadaCCH Canadian Ltd. v. Law Society of Upper CanadaCCH Canadian Limited v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, is a landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law. A group of publishers sued the Law Society of Upper Canada for copyright infringement for providing photocopy...