CNM Special Edition Update

ISPs seek leave to appeal Tariff 22 ruling A coalition made up of the Canadian Cable Television Association (CCTA), Canadian Association of Internet Providers (CAIP) and Bell Canada is seeking the leave of the Supreme Court of Canada to argue for the overturn of last May’s Federal Court of Appeal decision on Tariff 22 (CNM Special Update, May 2/02). The leave to appeal is expected to be filed today. Last spring, the appeals court rendered a controversial decision in the matter of liability for copyright when music is streamed online. In favour of ISPs – substantially all of whom, major and minor, are represented by the troika now before the Supreme Court – the lower court determined that Internet service providers did not communicate works, and thus shouldn’t be subject to tariffs on copyrighted music. At issue in this bid to appeal, however, are two other decisions in the same case. The first holds that ISPs are liable for paying copyright when they cache copyrighted material to speed up the flow of information. Secondly, the appeals court held that music communicated from outside the country is subject to tariffs. The extra-national issue may be extraordinary enough to win the Supreme Court’s interest. The court can only hear a fraction of the cases parties bring to its attention every year, but CCTA senior counsel Jay Kerr-Wilson tells Canadian NEW MEDIA that the leave to appeal request has several interesting hooks. "There’s going to be an increasing stream of Internet cases making their way through the courts, particularly with respect to copyright issues, so this is a good one for the Supreme Court to look at to establish some principles." "The issue of whether or not ISPs should be liable for caching copyright material will have a significant impact, not only on the operations of ISPs, but on the entire Canadian Internet industry. Caching is an automated function, just like the other intermediary functions that the Court of Appeal held should not result in liability. The ability to cache improves the performance of Internet transmissions, reduces traffic, and saves costs. The decision impacts content providers, end users, and Internet intermediaries. We believe the Federal Court’s decision was based on a fundamental misunderstanding of the nature of caching and the decision that flowed from that misunderstanding has potentially far-reaching consequences." "The other issue that should get the court’s attention is the jurisdictional component. We’ve got the federal court of appeal saying that the communication of content from a server in Virginia to Toronto could be a communication in Canada with copyright liability. That raises a lot of issues that don’t just affect copyright. That’s an issue that the court’s going to have to deal with eventually, and they can deal with it as easily in this case as another…There’s some interesting stuff in there. There’s some meat on those bones." Paul Spurgeon, general counsel for the Society of Composers, Authors and Music Publishers of Canada (SOCAN), says his organization fully expects to counter-appeal to ensure important issues of concern to it are heard by the court. Canadian NEW MEDIA will have further details on this story in its upcoming full issue.

CNM Special Edition Update

Broadcast | August 1, 2002

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