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Board Order August 10 2012 From

Board Order August 10 2012 From

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Published by hknopf

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Published by: hknopf on Nov 15, 2012
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12/04/2012

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From:
Maryse.Choquette@cb-cda.gc.ca [mailto:Maryse.Choquette@cb-cda.gc.ca]
Sent:
August-10-12 4:06 PM
To:
Kerr-Wilson_Jay; Ken.Thompson@rci.rogers.com; tanya.woods@bell.ca;JonathanLee.Hickey@quebecor.com; Craig.McTaggart@telus.com; gilles.daigle@gowlings.com;lynne.watt@gowlings.com; Thomas_Ariel
Subject:
SOCAN Tariff 24 (2003-2005 and 2006-2013) - Ringtones and Ringbacks
 
ORDER OF THE BOARD
 
On August 1, 2012, Bell Mobility, Rogers Communications Partnership, TELUSCommunications Company and Quebecor Media Inc. asked, pursuant to section 66.52 of the
Copyright Act 
, that the above-referenced tariffs be varied so as to repeal them. Theapplication relies on two decisions rendered by the Supreme Court of Canada on July 12,2012:
Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada
 
2012 SCC 34 (“ESA”) and
Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada
 
2012 SCC 35 (“Rogers”). In theapplicants’ view, since the Court ruled that the Internet delivery of a permanent copy of a
file containing a musical work does not involve a communication of that work, the tariffs arenullities and should be repealed.
 
The application implicitly raises a number of issues, including the following:
 
1) When the Supreme Court of Canada or the Federal Court of Appeal rules that the Boardincorrectly interpreted the law in the context of a tariff proceeding, what is the impact of that ruling on other, past tariff proceedings in which the Board relied on the same, incorrectinterpretation?
 
2) To what extent is an otherwise voidable or void tariff binding on the collectives and theusers it targets once it no longer can be challenged in a timely fashion?
 
3) Are the doctrines of 
res judicata
,
functus officio
or estoppel relevant to the instantapplication? To what extent ought these rules be applied differently before the Board thanbefore the courts, given that courts generally deal with past occurrences, whereas tariffs aremeant to be prospective?
 
4) As a matter of law, can the Board vary the above-referenced tariffs as of January 1,2003? As of January 1, 2006? As of July 12, 2012?
 
5) As a matter of discretion, should the Board refuse to entertain the application in whole orin part? In answering this question, parties are asked to address the following issues orfacts:
 
A) Is the Board the best forum to deal with the matter?
 
B) Is this an enforcement issue?
 
C) Is the impact of 
ESA
and
Rogers
on the relevant tariffs sufficiently clear to allow theBoard to deal with the application efficiently? Can the application be dealt with withoutfurther evidence or argument? For example,
 
Is it clear that ringtones or ringbacks are permanent copies within the meaning of 
ESA
?
 

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