While in the U.S. a catchy patriotic phrase talks about letting freedom ring, in Canada, tech-oriented companies are clamoring for their cash registers to jingle — with sums they say are owed over the improper collection of fees on ringtones. The legal issue also is a concern for videogame-makers who use tunes in their entertainments. It seems the Supreme Court of Canada earlier this year held that delivery of a file over the internet did not constitute its “communication,” that decision coming in Entertainment Software Association v. SOCAN, the Canadian Copyright Board. The court said transmission of musical works contained in a video game through an internet download is not communication to the public. Further, it said the Copyright Board improperly applied a tariff to the downloads, effectively double-dipping by subjecting delivery of a copy through the Internet to two fees, one for reproduction and one for communication; that compares to delivery of a copy via stores or mail, subject only to reproduction fees. The court said the Copyright Board ignored the principle of technological neutrality. Based on the foregoing, telecommunication companies recently have sued the agency, seeking $15 million in restitution plus damages, along with a declaration that “the transmission of a copy of a ringtone containing a portion of a musical work is not a communication to the public by telecommunication of the musical work for the purpose of …Tariff 24, or in the alternative that Tariff 24 constitutes a jurisdictional violation of and is ultra vires the Copyright Act.” This is a case to watch as Canada tries to align technological shifts and copyright protection. The U.S. Court of Appeals for the Second Circuit in United States v. American Society of Composers, Authors and Publishers (ASCAP) tackled this issue, ruling in 2010 that the download of a copy of a work does not come within the scope of the right to perform in public, as defined in the U.S. Copyright Act, 17 U.S.C. §§ 101 and 106(4).
A jingling noise up north? Copyright suits flying
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