How "the public" can equal one person
In early September 2010, the Federal Court of Appeal concurred with an earlier decision of the Canadian Copyright Board "(Board)" holding that the download by a single user of a music file from an online music service is a communication of the musical work to the public by telecommunication.
In Bell Canada, et. al. v. SOCAN the Court of Appeal was asked to determine whether the transmission of a musical work to an individual by an on-line music service should be considered to be a communication of that work to the public by telecommunications within the meaning of paragraph 3(1)(f) of the Copyright Act. The question of whether the download was in and of itself a communication was not at issue, as it had been previously held by the Supreme Court of Canada in SOCAN v. Canadian Association of Internet Providers that a music file is communicated when it is recreated on the recipient computer. Such a communication was also held to qualify as a communication by telecommunication.
The Bell Canada case stemmed from the Board’s decisions relating to SOCAN’s application for a tariff with respect to the performance and communication of musical works on or by means of the Internet. After reviewing the prior jurisprudence and drawing analogies to the concept of selling goods to the public, the Court of Appeal found that there are two factors which are to be considered in determining whether a communication is one that is made to the public: First, the communicator’s intention must be that of communicating the work to the public at large, and second, at least one member of the public must receive the communication. If these two conditions are met, then there has been a communication to the public.
The Court of Appeal noted that the number of actual recipients of a communication is irrelevant so long as there is at least one such recipient. It was further noted that multiple transmissions of the same work could constitute evidence of an intention to communicate to the public, and a transmission, coupled with such an intention, would constitute a communication to the public. Once it has been found that there is an intention to communicate the work to the public, every communication of such work, beginning with the first communication, is a communication to the public, even if ultimately there is only one recipient.
On an interesting side note, the Court of Appeal explicitly stated in this decision that it would afford the Board great deference in its decisions: “The Board is a specialist tribunal which deals exclusively with copyright matters…[and] is therefore entitled to deference with respect to its interpretation of … [the Copyright] Act.” This deference applies to both matters of law and findings of fact.
