Supreme Court dismisses ringtone leave to appeal, CWTA disappointed

The Supreme Court of Canada has refused to hear an appeal to eliminate Tariff 24 - a levy on companies that provide ringtones to subscribers. And while the Canadian Wireless Telecommunications Association is disappointed in the decision, it's hopeful potential reforms to copyright law will fix the situation."Obviously, we're disappointed that the Supreme Court didn't agree with our legal opinion that downloading a ringtone is not a communication to the public," Marc Choma, director of communications with the CWTA, tells Report on Wireless. "This was not about not paying the artists their royalties, we have always paid royalties to the artists for their work. This was an additional tariff that only applied to the delivery of the ringtone."The Supreme Court didn't provide reasons for its dismissal. A summary of the case can be found here.The wireless association, whose carrier members have paid the levy since its inception, hopes that amendments to the Copyright Act will result in an elimination of the tariff. The federal government tabled controversial copyright legislation just before Parliament's summer recess, but the bill died on the order table when Parliament was prorogued after an election was called."Looking forward, there's always room for copyright reform," Choma explains. With the government's decision to try to reform the country's copyright laws, it underscores the need to take into account new technologies in any sort of copyright reform, he adds.Choma also notes that the situation in Canada is in stark contrast to what exists south of the border. He points out that two US courts have come to the opposite conclusion on the downloading of ringtones by subscribers: there isn't a levy for the delivery of a ringtone to a subscriber. "So there is room to look at copyright law or copyright reform and that's where we will look to," he says.Tariff 24, originally proposed by the Society of Composers, Authors and Music Publishers of Canada (SOCAN) in 2003, calls for a per ringtone levy to paid by ringtone providers, namely the wireless carriers, each time a subscriber downloads a ringtone. This is what SOCAN calls a "communication to the public."The CWTA, along with Bell Mobility and Telus Mobility appealed after the Copyright Board of Canada certified the 2003-2005 rates for Tariff 24 in August 2006. They argued at the Federal Court of Appeal (FCA) that the act of downloading a ringtone by a subscriber didn't constitute a communication to the public by telecommunications because downloading is done by individuals and is a private communication between the subscriber and the carrier.The FCA didn't buy the carriers' argument. "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," read the January 9, 2008 decision.

Supreme Court dismisses ringtone leave to appeal, CWTA disappointed

News | September 18, 2008

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