On June 30, 2004, the Supreme Court of Canada held (a) that a telecommunication of music from a foreign state to Canada occurs, and is copyright protected, in Canada, and (b) that Internet service providers (ISPs) acting as intermediaries in providing access to the Internet are not liable for copyright infringement in respect of music transmitted over their networks.
In a decision written by Justice Ian Binnie, the majority held that the real and substantial connection test “is sufficient to support the application of our Copyright Act to international Internet transmissions in a way that will accord with international comity and be consistent with the objectives of order and fairness.”
An Internet communication either originating or received in Canada may occur in either or both places. Receipt and point of origin are significant connecting factors, along with the situs of the content provider, the host server, the intermediaries and the end user.
On the ISP liability issue, the Court described the Internet as a great innovation of the information age, the use of which should be facilitated and not discouraged. Against this backdrop, the Court held that ISPs did not communicate works, or authorize the communication of works, for the purpose of the Copyright Act. ISPs were entitled to rely on a provision of the Act which states that those whose only act is to provide the means of telecommunication necessary for another to communicate are, themselves, deemed not to communicate. As Justice Binnie aptly put it, ‘Don’t shoot the messenger!’ The Court applied the reasoning in its recent jurisprudence to hold that, given the massive amount of non-copyrighted material available on the Internet, ISPs should not be deemed to authorize the downloading of copyrighted material as opposed to non-copyrighted material.
Justice Louis LeBel wrote a dissenting judgment on the cross-border communications issue only.
The Canadian Association of Internet Providers, Canadian Cable Television Association, Bell ExpressVu, TELUS Communications Inc., Bell Canada, Aliant Inc. and MTS Communications Inc. were represented by Thomas Heintzman, Q.C., Barry Sookman, and Susan Gratton of McCarthy Tétrault.
The Society of Composers, Authors and Music Publishers of Canada were represented by Y.A. George Hynna, Brian Crane, Q.C., and Gilles Daigle of Gowlings, and C. Paul Spurgeon, in-house counsel at SOCAN.
The interveners, the Internet Commerce Coalition, the European Telecommunications Network Operators’ Association, the European Internet Service Providers’ Association, the Australian Internet Industry Association, the Telecom Services Association and the US Internet Industry Association were represented by Andrea Rush and Stephen Zolf of Heenan Blaikie.
The interveners, the Canadian Recording Industry Association and the International Federation of Phonogram Industry, were represented by Glen Bloom of Osler, Hoskin & Harcourt.