Battleground set for legal challenge of Tariff 24; hearings set for next November

The battleground has been set and the lines in the sand drawn as the two sides fighting over the proposed implementation of a tariff for wireless ringtones prepare for oral arguments next November. The Copyright Board of Canada last month set November 23, 2004 as the day it will begin hearing testimony on Tariff 24, which proposes to impose a maximum of $30,000 in annual payments on the country’s wireless operators and ringtone suppliers. Canada’s wireless industry stakeholders vehemently oppose the proposed tariff, which was introduced last year by the Society of Composers, Authors and Music Publishers of Canada (SOCAN). They argue that SOCAN hasn’t met the burden of proof for the tariff to be approved (RoW, March 4/03). "SOCAN has not demonstrated that the provision of ringtones by a ‘ringtone supplier’, as defined in its proposed tariff, constitutes a ‘communications to the public by telecommunication’ within the meaning of s.3 of the Copyright Act," the Canadian Wireless Telecommunications Association (CWTA) writes in its June 18, 2003 objection to the tariff. This paragraph appears verbatim in objections from Bell Mobility and Telus Mobility filed the same day. The argument doesn’t sway SOCAN and its legal counsel, Gowling Lafleur Henderson LLP. The law firm quotes the Copyright Board’s Tariff 22 decision as a key argument in SOCAN’s case. "The objectors’ claim that the provision of ringtones containing SOCAN musical work does not constitute a communication to the public by telecommunication of those works is surprising given the legal history underlying the application of Copyright Act section 3(1)(f). In particular, the board concluded in its recent Tariff 22 decision that the transmission of musical works over the Internet constitutes communication to the public by telecommunication within the meaning of section 3(1)(f)," writes Gowlings in its August 8 reply. "The objectors fail to provide any facts or legal analysis that would support their position that a different result should ensue in connection with wireless web applications such as the provision of ringtones. SOCAN submits that there is simply no basis for suggesting that the provisions of ringtones falls outside the scope of copyright protection for musical works under section 3(1)(f)," reads its submission. The CWTA, Bell Mobility and Telus Mobility also object to the rates set out in the proposed tariff without admitting any liability requiring royalty payments. "The proposed rates do not reflect the fair, reasonable and appropriate value of the communication to the public by telecommunication of works in SOCAN’s repertoire. The proposed fees do not reflect either the amount, type or impact of music use by a licensee," reads the CWTA’s objection.

Battleground set for legal challenge of Tariff 24; hearings set for next November

News | October 7, 2003

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