In Canadian Wireless Telecommunications Association, Bell Mobility Inc. and Telus Communications Company v. Society of Composers, Authors and Music Publishers of Canada (Fed. C.A., January 9, 2008) leave to appeal dismissed with costs (32516) (S.C.C.), the dispute focused on the transmission of musical ringtones; short clips of digitized music alerting cellphone owners to an incoming call. These ringtones often form part of copyrighted musical compositions. In an earlier decision the Copyright Board of Canada had certified SOCAN Tariff No. 24, which authorized SOCAN to collect royalties from cellphone owners who had purchased wireless ringtones transmission. The Copyright Board found that the communication of a ringtone was a communication by telecommunication within the meaning of s. 3(1)(f) of the federal Copyright Act, R.S.C. 1985, c. C-42. The Canadian Wireless Telecommunications Association and two of its members, Bell Mobility Inc. and Telus Communications Company, sought judicial review of that decision, arguing that Tariff No. 24 was invalid because: (1) a ringtone transmission was not a “communication” and thus did not fall within the authorizing section of the Copyright Act; and (2) even if these transmissions were “communications,” they were not communicated “to the public,” and, hence, did not afford copyright protection.
The Federal Court of Appeal dismissed both arguments. With respect to the first argument, Sharlow J.A. relied upon the decision of the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45,  2 S.C.R. 427 (S.C.C.) and held that a transmission of music is a “communication” once it is received by the transmission target. It was irrelevant that the cellphone owner did not hear the music during the transmission: “The fact that the technology used for the transmission does not permit the cellphone owner to listen to the music during the transmission does not mean that there is no communication” (para. 19). With respect to the second argument, the applicants posited that since each transmission was effectively a commercial exchange between the wireless carrier and a single individual, then it was a private, rather than a public; especially where the transmission was initiated by the cellphone owner. Nevertheless, Sharlow, J. upheld the Copyright Board’s characterization of the transmissions that the wireless carriers were seeking repeated transmissions of the same works to numerous different recipients (para. 36). The Court held that this form of transmission was as “public” as a television show broadcast intended for private home viewing, but available to the public at large. Justice Sharlow opined: “If a wireless carrier were to transmit a particular ringtone simultaneously to all customers who have requested it, that transmission would be a communication to the public. It would be illogical to reach a different result simply because the transmissions are done one by one, and thus at different times” (para. 43). In the result, the judicial review application was dismissed. On September 18, 2008, the Supreme Court of Canada dismissed the Wireless Carriers’ motion for leave to appeal, with costs (Coram: McLachlin, Fish and Rothstein JJ.).
Antonin I. Pribetic