Transmission of Ringtones to Customers is a Communication Protected by Copyright

The Federal Court of Appeal, in Canadian Wireless Telecommunications Association v Society of Composers, Authors and Music Publishers of Canada, (2008 FCA 6), recently found that wireless transmission of ringtones from wireless carriers to the cellphones of their subscribers constitutes a communication to the public by telecommunication, which is an exclusive right of the copyright owner. As a result, the Court upheld the Copyright Board's decision to subject downloadable ringtones to copyright royalties (see E-TIPS®, "Canadian Copyright Board Decides Downloadable Ringtones Are Subject to Copyright" Vol 5, No 8, October 11, 2006.) It was not disputed that the group comprised of all subscribers would be considered to be "the public", but it was disputed whether the downloads constituted "communications" and were "to the public". The Court rejected the argument that a "communication" is a transmission intended to be heard or perceived immediately upon transmission. In this context, the Court was satisfied that a communication had occurred on receipt of a ringtone, whether or not the recipient had listened to it. In this interpretation, the same communication is being made to multiple individuals, at their request, one-by-one. Justice Sharlow held that all subscribers have access to the ringtones and it would clearly be a communication to the public if a ringtone were to be transmitted to numerous subscribers at one time, and it would be illogical to reach a different conclusion because the transmissions were made one-by-one. She distinguished the landmark case of CCH Canadian Ltd. v Law Society of Upper Canada [2004] 1 SCR 339, in which the Supreme Court of Canada found that a request-based photocopy service that communicated copies by use of fax, which is a method of telecommunication, did not constitute a communication to the public. The key difference was that there was no evidence in the CCH case of the same work being transmitted to numerous recipients. Finally, the Court rejected the assertion that communication to the public must be done openly and without concealment. In justifying this finding, Justice Sharlow made the interesting assertion that a television broadcast is a performance in public even if nobody watches it because it is "made available" to a sufficiently large and diverse group of people. In this case, making the ringtones available to a significant segment of the public was found to be a sufficient degree of "openness". While the issue was not addressed, there is clearly a positive act involved by the wireless carriers in making ringtones available for sale, which may distinguish this situation from others, such as making works available on a peer-to-peer network. For the text of the FCA decision, see: http://decisions.fca-caf.gc.ca/en/2008/2008fca6/2008fca6.html Summary by: Tom Feather