Case Comment

Canadian Cable Television Association v. Canada

citation(s): (1993), 46 C.P.R. (3d) 359 (F.C.A. per Letourneau J.A.)

The transmission of a musical work by a cable to a private residence is a "performance in public" of the work under the Canadian Copyright Act, s. 2.

at p. 369:

" I would have thought on a mere common sense basis that when the Prime Minister of Canada addresses the nation, either from his home or his private office, and reaches the citizens in their homes by means of radio and television, he appears in public and performs in public. I would have been content to leave it at that had it not been for early conflicting decisions on this issue."

Cable companies transmitting a signal to residences via cable were infringing copyright by "authorizing" the performance of musical works by home subscribers when they turned on their television

at p. 370:

In the case of Canadian Admiral Corp. Ltd. v. Rediffusion, Inc. (1954), 20 C.P.R. 75, [1954] Ex. C.R. 382, 14 Fox pat. C. 114, the court held that radio or television broadcasts do not amount to performances in public when received in private homes. Cameron J. wrote (at pp. 101-2):

"Counsel for the plaintiff, however, submits that even if one such "view" in the privacy of the owner's home does not constitute a performance in public, that in cases where a large number of people, each having a terminal unit in his home, performs the work by operating the terminal units, that such would constitute a performance in public. He says that from the point of view of the owner, a large number such performances would constitute an interference with the owner's right of making copies of his work and might cause him to lose part of his potential market. I am unable to agree with that submission. I cannot see that even a large number of private performances solely because of their numbers, can become public performances. The character of the individual audiences remains exactly the same; each is private and domestic, and therefore not "in public". Moreover, in telecasting the films, I think the plaintiff desired to have the telecasts seen by as many people as were within range and possessed the necessary receiving equipment in order that they might be informed of its product; so that I do not think that what was done by the defendant in so far as the private homes and apartments are concerned, interfered with his potential market in any way. It was stated and not denied that the films, including the commercial announcements of the plaintiff, were rediffused as a whole.

I find, therefore, that the performance in the homes and apartments of the subscribers of the defendant company were not performances "in public"."

With respect, I prefer and adopt the contrary views expressed by English, Indian and Australian authorities: Messager v. British Broadcasting Company Ltd. supra; Garware Plastics and Polyester Ltd. v. M/S Tele-link, A.I.R. 1989 Bombay 331; Chappell Co. v. Associated Radio Co. of Australia Ltd., [1925] V.L.R. 350 [respectively]. They are consistent with our Act. They take a realistic view of the impact and effect of technological developments and they are consistent with the plain and usual meaning of the words "in public", that is to say openly, without concealment and to the knowledge of all. In Messager v. British Broadcasting Co. Ltd., supra, an opera was played for a few friends in a private studio but was transmitted by wireless telephony to the general public. Called upon to decide whether this amounted to a public performance for the purpose of the English Copyright Act whose definition was analogous to ours, McCardie J. wrote (at pp. 548-9):

In my view, however, the defendants, in doing what they did, clearly gave a public performance. Instead of gathering the public into a vast assembly room, they set in motion certain ether waves knowing that millions of receiving instruments in houses and flats were tuned to the waves sent forth, and knowing and intending also that acoustic representation of the opera would thereby be given to an enormous number of listeners. If I did not hold this to be a public performance by the defendants I should fail to recognize the substance and reality of the matter and also the object and intent of the Copyright Act.

In Chappell Co. v. Associated Radio Co. of Australia Ltd., supra, Cussen J. wrote for the court (at p. 362):

A performance, in our judgment, is no less public because the listeners are unable to communicate with one another or are not assembled within an enclosure or gathered together in some open stadium or park or other public place. Nor can a performance, in our judgment, be deemed private because each listener may be alone in the privacy of his home. Radio-broadcasting is intended and in fact does reach a very much larger number of the public at the moment of the rendition than any other medium of performance.

This is certainly even truer of a transmission by means of television. I am satisfied that the transmission of non-broadcast services by the appellant to its numerous subscribers, when it relates to musical works, is a performance in public within the meaning of s.3(1) of the Copyright Act.

The appellant argues that it does not authorize, sanction or countenance the performance of musical works, but merely supplies the equipment and services which it knows will result in copyright infringement in the course of a use by another person.

I agree with the learned Trial Division judge that the situation of the appellant in this case is different from that of the CTV network in the CAPAC case: see also the decision of this court in CTV Television Network Ltd. v. Canada (Copyright Board) Court File No. A-340-90, judgment rendered on January 5, 1993 [reported ante, p. 343, 37 A.C.W.S. (3d) 1261]. The affiliated stations to whom CTV was transmitting were licensed by CAPAC to perform musical works in public and therefore to make use of the copyrights. In addition, CTV was not transmitting its programs directly to the public. It transmitted them to affiliated stations which broadcasted the musical works to the public. In the case at bar, the appellant transmits directly to the public and, in my view, the fact that the subscriber has to turn on the television set in no way alters the nature of the transmission.¹ The appellant is more than a mere facilitator of a public performance which through an innocent agent or with the assistance of a third party who completes the final and missing link by turning on the television set.

However, if one wants to lay with the subscriber the ultimate responsibility for the materialization of the public performance and therefore the infringement of the copyrights, there is not doubt that, upon a plain or a constructive meaning of the word "authorization", the appellant authorizes such materialization by its customers. I think the learned Trial Division judge correctly summarized the state of the law with regard to the appellant's actions when he wrote (at p. 541):

"... I believe a cable television system which provides electromagnetic signals to a subscriber, under a contract whcih clearly contemplates that the sole use of the cable company's service is to be the production of audible and visual messages from the subscriber's television set connected to that cable, must be taken to have authorized that ultimate performance."

Endnotes

1. See Mellor v. Australian Broadcasting Commission, [1940] 2 All E.R. 20 at p. 24, where Viscount Maugham wrote for the Privy Council:

" Whether the studio performance is public or private, if the persons who are responsible for that performance are also responsible for the broadcasting of the piece, there is no doubt that they have facilitated the performance of the work in public by any listener who is in a position to use a loudspeaker, and thus to perform the piece in public. The question as to the position of the broadcasters in such a case, as far as regards infringement, is answered by the language of sect 1(2) of the Act. It is sufficient to show that they have 'authorized' the performance in public of the works, and this will generally be established by proving that listeners with a licence were entitled to tune in their receivers."

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