Composers, Authors and Publishers Assoc. of Canada Limited v. CTV Television Network Limit

J.: -The plaintiff appellant, Composers, Authors and Publishers Association of Canada Ltd. (hereinafter called "CAPAC") is a performing rights society contemplated in ss. 48 to 51 of the Copyright Act, R.S.C. 1952, c. 55 (hereinafter called the "Act"). In accordance with those provisions it has filed statements of fees which have been approved by the Copyright Appeal Board and published in the Canada Gazette. In those statements Tariff No. 3 entitled "Television Broadcasting" sets the fee payable for a general licence by an operator of television station other than the Canadian Broadcasting Corporation at 11 per cent of the gross amount paid for the use of the operator's services or facilities.

Defendant CTV Television Network Ltd. (hereinafter called "CTV") has, since October 1, 1961, been operating a private television network in the following way. It acquires, or maybe produces, television programs recorded on videotape. It contracts with advertisers for payment in consideration of the addition of commercials. It also contracts with private affiliated television stations for having the programs broadcast at a proper time in consideration of stipulated payments. The programs are supplied to the affiliated stations in some cases by shipping a copy of the videotape but, in most cases, by using facilities provided by the defendant The Bell Telephone Company of Canada (hereinafter called "Bell"). These facilities over short distances include cable only but, over long distances, the transmission is effected mostly by microwave.

It is obvious that CTV's gross revenue from the operations above described must be very substantially larger than the amount that it pays to the affiliated stations, seeing that this revenue has to cover the cost of the proet al. grams and the cost of transmission to the affiliated stations

J. in addition to what is paid for broadcasting same and also provide for general expenses and profit. CAPAC has been trying to obtain a 11 per cent fee on the larger amount.

With that end in view, it has filed in November 1962 a tariff providing under the heading of "Television Broadcasting", in addition to the general licence above mentioned, for a general licence to CTV "for all network television broadcast". The fee for such licence is 11 per cent of the gross amount paid to CTV for the use of the network less the amount in turn paid by CTV to its affiliated stations.

CTV objected to the tariff and, after it was approved, refused to take a licence. Thereupon CAPAC brought action in May 1963 alleging in substance the facts above recited and complaining of infringement of copyright in some seven named musical works by "communicating the same by radio communication throughout Canada, or by causing or authorizing the said musical works to be communicated by radio communication throughout Canada, without the licence or authority of the Plaintiff".

It is admitted that CAPAC is the owner of the copyright in the musical works in question. It is also admitted that these "musical numbers" as they are called in the admission were included in the programs transmitted for broadcasting to the affiliated network stations and effectively broadcast by them. It is also admitted that the transmission in several cases was effected by means of cable and microwave facilities of Bell. The question is was this an infringement of CAPAC's copyright?

In the Exchequer Court' it was held that there was no infringement for the reason that there was no transmission nor communication of the musical "works" from CTV to the affiliated stations and that the latter being authorized by licence from CAPAC to make use of the subject matter of the copyright, it could not be an infringement for CTV to authorize them to do it. As the learned President put cano e tr cannot be a tort merely to authorize or cause a person to do something that that person has a right to do". *CAPAC's claim is based essentially on sub-para. (f) and the concluding words of subs. (1) of s. of the Act, whereby it is enacted that "copyright" includes the sole right In considering this provision, it is essential to note the following definitions in s. 2 of the Act:

In the light of the above definitions, it is obvious that what was done on the occasion described in the action is not the communication of the "musical works". Leaving aside any technical considerations respecting the nature of the signals transmitted from CTV to the affiliated stations, these signals did not communicate the "musical works" as defined in the Act, that is graphic reproductions of melody and harmony. What was communicated was not the "works" but "a performance of the works". Thus, on a literal construction of the Act, CAPAC's case fails,'in so far as it rests on sub-para. (f).

The next question is: Should the enactment be read otherwise than literally? Counsel for CAPAC has drawn attention to the French version of the Act in which subpara. (f) reads as follows:

In this connection, the following facts should be noted. Section 53 of the Act refers to the Rome Convention which is set out in the Third Schedule. From this it appears that the Convention is in French only: the Schedule annexed to the English version is expressly stated to be a translation.

The history of the legislation further shows that sub-para. (f) as well as s. 53 and the Third Schedule were all added to the Act by the Copyright Amendment Act 1931, 21-22 Geo. V, c. 8. This makes it obvious that sub-para. (f) was inspired by para. I of Article 11bis of the Convention, which cTV is th folowig tems:NETWORK jouissent

In the Schedule this is translated as follows:

It will be noted that where the Convention speaks of

"radiodiffusion" i.e. radio broadcasting, the unfortunate translation reads "radiocommunication".

The error in translation of the Convention was obviously carried into the statute intended to implement it, and, as happened in the case of the Hague Rules annexed to the Water

Carriage of Goods Act, the English text was translated into

French.

It is apparent that the'above cited article of the Convention contemplates public performances by radio broadcasting. Such is the clear meaning of "la communication de leurs ceuvres au public par la radiodiffusion" (communication of their works to the public by radio broadcasting). In the Convention "oeuvres" (works) is not defined, therefore, as applied to musical works, it is properly taken in the primary sense of the 'composition itself, not its graphic representation as in the Act. Also, while "communication"

does not usually mean "a performance" it is apt to include performances in its meaning along with other modes of representation applicable to other kinds of artistic or literary works that are not "performed".

It must be noted that in the Convention it is doubly indicated by "au public" and by "radiodiffusion" that public performances or communications only are aimed at. This is consonant with the general definition of "copyright" which, as stated in subs. 1 of s. 3 of the Act, applies to any reproduction of the work but, as respect performances, applies only to those that are "in public". Is it to be inferred that Parliament intended to depart from this principle in enactsubs. 2(f) simply because the words "to the public" are not found in it? Of course, if the provision was clear, if it could be applied literally to give this result, effect would cTv have to be given to the intention. However, as previously noted, the material part of the provision does not read "to communicate a performance of such work by radio communication" but "to communicate such work radio Pi communication". view the statutory definitions "musical work" and of "performance" the insertion of the word "performance" in the enactment is a very substantial departure from the text as written. Bearing in mind that the reproduction of a work as distinguished from a performance thereof is always within the definition of "copyright" while a performance is outside the scope of the definition if not in public, it is only through the insertion of the word "performance" without the words "in public" that a departure from principle would be effected.

On the assumption that the provision is not clear and that it must not be applied literally, it is not at all obvious that it must be read as suggested to give effect to CAPAC's contention. Once it is ascertained that interpretation has to be resorted to, the intention must be gathered from the statute as a whole and this certainly includes the Schedule that is referred to in the body of the Act and is printed with it. Upon such consideration it becomes apparent that sub-para. (f) is intended to achieve the result contemplated in paragraph 1 of article l1bis. Bearing in 'mind that the Rome Convention is in French no other conclusion is possible but that the intent is to provide that copyright includes the exclusive right of public performance or representation by radio broadcasting ("communication au public par la radiodiffusion").

The contention advanced by CAPAC would have the anomalous result that the extent of the copyright with respect to the communication or transmission of performances -of musical works, would depend on the means employed for such communication or transmission. If it was by physical delivery of magnetic tape or by transmission of an electrical signal by cable, there would be no monopoly in favour of the owner of the copyright in the works performed. However, such monopoly would exist if the transmission was by microwave, although such transmission would be as private as in the other cases.

I therefore come to the conclusion on the first point, that CAPAC's contention cannot be supported either on the literal meaning of the statute or on construction in the light of the intention revealed by the whole Act, including the Schedule.

As to the second point, it seems to me that the trial judge has effectively disposed of it. The authorization to make use of the copyright by performing the works through television broadcasts was given by CAPAC to the affiliated stations and it cannot be said to proceed from 'CTV. CTV effectively provided the means of doing that which CAPAC had authorized. In this connection it must be observed that the licences contemplated in ss. 48 and following of the Copyright Act are throughout described as performing licences or licences in respect of the "performance" of works.

It may well be that if CAPAC cannot collect fees from CTV under its tariff, it is because under the authority of legal provisions respecting 'fees for performances it is seeking to recover such fees from someone who does not effect performances. It may be significant in this respect that CAPAC is claiming infringement not by performance, but by radio communication of the work or by authorizing such communication.

CAPAC has pressed at the hearing the argument that if the law was not applied as it contends, it would be deprived of the economic advantage that the Act and the tariff were intended to provide to it. If such an argument could be considered, it would have to be observed that nothing in the Act appears to restrict the quantum and the modalities of the fees to be required under an approved tariff. If by reason of the setting-up of the CTV network the fee prescribed in the tariff applicable to television broadcasting stations has become inadequate, this is a matter for the Copyright Appeal Board on the submission of an appropriate tariff at which time it may have to be considered whether some special. treatment should be provided to avoid a duplicate fee on the cost of programs recorded in the United States. It has not been shown that the Board could not approve a