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What is the origin of the case?

Entertainment software Association v. Society of Composers, Authors and Music Publishers of Canada is a Federal case at the level of supreme court judgements and was decided on July 12th 2012. The decision was appealed from the federal court of appeal because the appellants Entertainment Software Association requested that the decision in the case would be reviewed again by a higher court. They argued that they were dissatisfied with the first decision that took place in the Copyright Board and Federal Court of Appeal so they decided to take it to the Supreme Court due to some legal issues. The Federal Court of Appeal upheld the Copyright Board’s decision and the appeal was certified. On judicial review, the Federal Court of Appeal upheld the Copyright Board’s decision. The appeal was from the Federal court of Appeal but was dismissed with costs.

What are the facts of the case?

The appellants Entertainment Software Association (collectively ESA) are a partnership of video game publishers and distributors who allow customers to download video game copies from the internet that are identical to the copies Society of Composed, Authors and Music Publishers (collectively SOCAN) sell and customers purchase them in store or by mail. Their video games contain copyrighted musical work which became a copyright and intellectual property case. The issue that transpired between the parties to the case was whether video game publishers ESA and SOCAN, who had paid royalties to the copyright owners of musical works Entertainment Software Association incorporated into their games for the reproduction of those works under the Copyright Act, could be compulsory by the Copyright Board to pay additional fees for the “communication” of the work to the public by telecommunication under the Copyright Act when they sold copies of the video games through internet downloads. ESA appealed to the supreme court arguing the act of downloading a video game consisting of musical work does not mean the same as communicating the musical work to the public. The plaintiff in this case are the appellants, ESA of Canada as they were the party who accused SOCAN to review the case again at a higher level as there was a dissatisfaction in the previous decision.

The legal injury that ESA will face is they would have to pay any legal damage they might have caused the other company. They will have to pay additional copyright charges for using their work in their video without paying any royalties or tariffs that they paid for before. The legal remedy they are seeking is restitution because they want ESA to pay the tariffs incorporating their music in their video game as a copyright law. SOCAN argued that as copyright owners, they are entitled for compensation for communication of their work through downloads from the internet since the rights of reproduction and communication are different rights under the act. The defendant in the case are the respondents, SOCAN as they were the party being accused by ESA for being able to communicating musical work on behalf of the copyright owners Entertainment Software Association. The defense the defendant’s SOCAN offers against the claim of the plaintiff was that the term “communicate” was not defined in the act, and it is evadable that the legislative act demonstrates that the right to “communicate” is associated to the right to perform a work but not the right to reproduce similar copies of it. They argued that downloading a video game incorporating musical works does not mean communicating musical work to the public. The makeup of the court is 9 judges, two parties and interveners who had a say in the outcome. This case was a bench trial because it was a trial by the judge in which the final verdict was given by the judge and not the jury. This case was heard en banc session because the case was heard by all judges of the court rather than by a panel of judges selected by the court.

What are the legal issues raised by the case?

The legal issue being raised in the case is whether the communication of video through the internet refers to as “communication” to the public as if it is, is SOCAN then authorized to be given royalties for the communication of music work in ESA’s video games. The court refers to no other legal issue in the case and the final decision offered by the court regarding the legal issue is they look up the definition of “communication” and its difference in definition compared to radio communication and telecommunication. In the end, it was decided that “internet delivery of a permanent copy of a video game containing musical works amounted to a communication under s.3(1) should be set aside.” Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231 (pg. 47).

What reasoning does the court use in its decision?

The court assessed the legislative history of the act to come to a final decision. The appeal mainly focused on the word communicate. As stated in the case, there is no clear definition of that word in the act. The supreme court reviewed judicial history of the act and it was concluded that the right to communicate something is connected to the right to perform the work and not the right to reproduce identical copies of it. The reasoning the court gives is “communicating works to the public by telecommunication is an independent and distinct right from other rights in s. 3(1) that are included within copyright. It is complete when the communication is received, in this case, when the file is downloaded to the user’s computer, even though it can be perceived only after the transmission, or whether or not it is ever perceived.” Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231 (pg. 47). “The SCC concluded that the Internet delivery of a permanent copy of a video game containing musical works constitutes a reproduction of the musical works, but does not amount to a communication of the musical works.” Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231 (pg. 47).

The main legal guideline used by the court was the copyright act 3(1) which describes the purpose of the act and is referred by both parties. The precedents or statues that the court references in its decision are Bishop v. Stevens, SOCAN v. CAIP, Théberge v. Galerie d’Art du Petit Champlain Inc.; Compo Co. v. Blue Crest Music Inc. and Canadian Wireless Telecommunications Assn. v. Society of Composers, Authors and Music Publishers of Canada (communicated musical works contained in ringtones, members of public download ringtones for their mobile phones).

What are the consequences of the case?

The lower courts and jurisdictions that will be affected by the court’s decision are the Copyright Board and Federal Court of Appeal which are under the Supreme Court. Yes, there was a dissenting option from the court. The dissenting option was under the copyright act by Rothstein J. “Rothstein J. (dissenting) — Under the Copyright Act, R.S.C. 1985, C. c-42 (the “Act”), s. 3(1)(f), a copyright holder has the sole right to “communicate [his or her] work to the public by telecommunication” and to authorize any such communication. The question in this case is whether a musical work is “communicate[d] . . . by telecommunication” when a file containing the musical work is downloaded from the Internet.” Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231 (pg. 47).

Another consequence of the case was that “the Copyright Modernization Act [14] came into force. The Act amended the Copyright Act, adding in section 2.4(1.1) which dictates that a communication of a work…to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public. Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231 (pg. 15). In my opinion, I agree to the court’s decision and reasoning. Since the word “communicate” was not defined at all in the act, any company can assume what ESA had assumed. The decision clearly clarifies that what ESA had done is not a communication of musical work to the public. In my opinion, I agree to the court for making this decision as it is the most beneficial decision for both the parties. They can both learn from their mistakes in their contract and fix them before any other case arises.

The decision will have bad good implications because now music composing companies will try to amend their contract and make it better so their work does not get misused since its allowed to be communicated but not reproduced after this case.