Supreme Court of Canada Rules in Re:Sound v. Motion Picture Theatre Associations of Canada, et al.

The Supreme Court of Canada decided a collection of five groundbreaking copyright cases dealing with movies, music, the Internet and fair dealing. One is summarized below: Re:Sound v. Motion Picture Theatre Associations of Canada, et al.

The Copyright Act provides that performers and makers of sound recordings are entitled to “equitable remuneration” for the performance in public or the communication to the public by telecommunication of their published “sound recordings.” However, the definition of “sound recording” expressly excludes any “soundtrack” when it accompanies a cinematographic work.

On March 28, 2008, the appellant Re:Sound filed two tariff proposals claiming royalties for the performance of sound recordings embodied in movies shown by motion picture theatres and other establishments and in television programs broadcast by over-the-air, pay, specialty and other television services. The Motion Picture Theatre Association of Canada, Rogers Communications Inc., Shaw Communications Inc., Bell ExpressVu LLP, Cogeco Cable Inc., EastLink, Quebecor Media, TELUS Communications Company, Canadian Association of Broadcasters and Canadian Broadcasting Corporation objected to the proposed tariffs on the ground that the statutory definition of “sound recording” excludes sound-tracks. Re:Sound argued that, while entire soundtracks were excluded, the individual songs in the soundtrack were not and that their performance triggered an obligation to pay royalties.

The Copyright Board refused to certify the tariffs and the Federal Court of Appeal upheld that decision on an application for judicial review.

The issue before the Supreme Court was a matter of statutory interpretation in respect of the definition of “sound recording,” and the undefined term “soundtrack,” and determined whether recording artists and record companies are entitled to equitable remuneration under the Copyright Act when their music is included in a television program or in a motion picture.

The Supreme Court held that the Copyright Board made no error in finding that the word “soundtrack” includes pre-existing sound recordings and that such recordings are accordingly excluded from the definition of “sound recording” when they accompany a cinematographic work. The Court held that this interpretation of the word “soundtrack” is consistent with the scheme of the Act, the intention of Parliament and Canada's international obligations. The appeal was dismissed with costs.

Solicitors for the appellant: Osler, Hoskin & Harcourt LLP, Toronto, with a team comprising Mahmud Jamal, Glen Bloom, Marcus Klee and Jason MacLean.

Solicitors for the respondent the Motion Picture Theatre Associations of Canada were represented by McMillan LLP with a team comprising David Kent (Toronto) and Sarah Kilpatrick (Ottawa).

Solicitors for the respondents Rogers Communications Inc., Shaw Communications Inc., Bell ExpressVu LLP, Cogeco Cable Inc., EastLink, Quebecor Media and TELUS Communications Company: Fasken Martineau DuMoulin LLP, Ottawa, with a team comprising Gerald Kerr-Wilson, Ariel Thomas, Julia Kennedy and Marisa Victor.

Solicitors for the respondent the Canadian Association of Broadcasters: Hayes eLaw LLP (now Heydary Hayes PC), Toronto, with a team comprising Mark Hayes and Debra Montgomery, with the support of Gabriel van Loon and Kathleen Simmons of Van Loon Simmons PC, Ottawa.

Solicitors for the respondent the Canadian Broadcasting Corporation: Fasken Martineau DuMoulin LLP, Montréal, with a team comprising Marek Nitoslawski and Joanie Lapalme.

Solicitors for the intervenor Canadian Internet Policy and Public Interest Clinic, University of Ottawa, Ottawa, with a team comprising David Fewer and Jeremy de Beer.