ISPs fire reply to SOCAN charge they are responsible for paying music tariffs

Internet service providers (ISPs) have no control over the content passing through their pipes and thus shouldn’t be liable for copyright payments on music distributed over their networks, says a coalition of ISPs and their industry associations in a written argument to the Supreme Court of Canada. On October 16, the Canadian Association of Internet Providers (CAIP), the Canadian Cable Television Association (CCTA), TELUS Communications Inc., Bell Canada, Aliant Inc., and MTS Communications Inc. jointly filed a reply to an assertion by the Society of Composers, Authors and Music Publishers of Canada (SOCAN) now in front of the Supreme Court that ISPs should pay a blanket licence fee to pay for music available online. The reply is just the latest stage in a fight that dates back to 1996 in the matter of Tariff 22 (CNM, Jan. 25/99). Both sides are currently embroiled in a complicated appeal and cross-appeal of the Copyright Board of Canada’s 1999 decision that ISPs should pay royalties only when they post content themselves - a decision that was also fought in front of the Federal Court of Appeal, which ruled on the matter in May 2002 (CNM, May 16/02). In the battle’s current form, SOCAN is now asking the Supreme Court to rule that ISPs do, in fact, owe musicians online royalties, an assertion ISPs have responded to in their latest appeal. At the same time, ISPs are appealing the lower court’s ruling that royalties are due on music originating from foreign servers, and that Internet caches are also subject to royalties. In its reply document to SOCAN’s charges, the ISP coalition has made a multiple-part argument against the need to levy blanket licence fees on the ISP industry. First, it says, the cross-appeal to which they’re responding doesn’t meet the standard of reasonableness since the facts as argued before the Copyright Board went unchallenged. Secondly, the ISP group says service providers don’t communicate works - a prerequisite to triggering liability. The coalition writes: "The persons engaging in a ‘communication by telecommunication’ were intended by Parliament to encompass the sender of the communication and its recipient. Intermediaries who act as a conduit have never been found to be infringing copyright in respect of information and messages which they carry in Canada. All witnesses before the board, including SOCAN’s own experts, agreed that it is the sender and recipient of Internet messages who are communicating with each other - not any intermediary between them." SOCAN has also claimed that because ISPs do more than just provide connectivity, they can’t rely on sections in copyright law that protect intermediaries. The ISP coalition responds in its latest filing that just because ISPs may do things other than connect customers with the Internet, they can’t be said to be exempt from those regulations. To illustrate what it considers the extreme of such an argument, the ISP coalition writes: "Entities providing telephony services, for example, would be unable to contract with their clients, offer white or yellow page listing services, rental or repair of handsets, or any other offering that is ancillary to providing the means of transmitting messages for its customers, without having to pay royalties in respect to the whole of their telephony services." The ISP group also uses its reply document to argue that communications are only sent between content providers and end users, and that providing hosting services doesn’t mean that ISPs authorize any communication of works. In concluding its reply, the ISP coalition asks the court to dismiss the cross-appeal. It writes: "SOCAN’s theory of liability in the cross-appeal is fundamentally flawed. It is premised on the unsubstantiated argument that Internet intermediaries control the content which passes through their systems or which is stored on servers hosted by them; that in providing Internet access or web hosting services, they communicate musical works ‘for their own business purposes’; and that Internet intermediaries are ‘commercial partners’ or ‘joint venturers’ with content providers. This argument is simply not supported by the record of evidence before this Court."

ISPs fire reply to SOCAN charge they are responsible for paying music tariffs

Broadcast | October 22, 2003

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