Federal Appeal

Intellectual Property


Copyright Board

Board entitled to broad margin of appreciation in considering specialized issues

Members of collective society R were performers and sound recording makers. Under ss. 67 to 69 of Copyright Act collective society was required to file with Copyright Board proposed tariffs to receive royalties for use of their repertoires. Copyright Board certified collective society R tariff setting royalties for the use of published sound recordings embodying musical works and performers’ performances of such works in non-interactive and semi-interactive webcasting for years 2009-2012. Supreme Court of Canada released judgment which affirmed importance of overarching principle of balance both when interpreting and applying Act. Collective society R applied for judicial review from decision. Application dismissed. Board was entitled to broad margin of appreciation in considering complex and specialized issues in case. Board’s decision was not outside of that margin of appreciation. Board chose to set rates in accordance with one-to-one ratio without regard to market conditions evidenced by contracts put before it. Board’s approach was acceptable and defensible application of facts and law. Submission by collective society R that Parliament used the term “equitable remuneration” in Act to describe different kind of remuneration from royalties to which copyright owners like members of collective society S were entitled was based on misinterpretation of Act. Board’s analysis, focusing on value of sound recording rather than input costs, was fully consistent with balance. It was reasonable for Board not to perform precise technological neutrality analysis mandated by Supreme Court given dearth of evidence before it.
Re:Sound v. Canadian Association of Broadcasters (2017), 2017 CarswellNat 2963, 2017 FCA 138, David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A. (F.C.A.).


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