File No.

A- z 1t
-14
FEDERAL COURT OF APPEAL
RE:SOUND
Applicant
-and-
CANADIAN ASSOCIATION OF BROADCASTERS, PANDORA MEDIA INC.,
CANADIAN BROADCASTING CORPORATION, ROGERS COMMUNICATIONS
INC., SHAW COMMUNICATIONS INC., QUEBECOR MEDIA INC., ALLIANCE DES
RADIOS COMMUNAUTAIRES DU CANADA, ASSOCIATION DES
RADIODIFFUSEURS COMMUNAUTAIRES DU QUEBEC, and NATIONAL CAMPUS
AND COMMUNITY RADIO ASSOCIATION
Respondents
NOTICE OF APPLICATION
TO THE RESPONDENTS:
A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the
applicant appears on the following pages.
THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial
Administrator. Unless the Court directs otherwise, the place of hearing will be as requested by
the applicant. The applicant requests that this application be heard at Toronto, Ontario.
IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the
application or to be served with any documents in the application, you or a solicitor acting for
you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules,
and serve it on the applicant's solicitors, WITHIN TEN (10) DAYS after being served with this
notice of application.
Copies of the Federal Courts Rules, information concerning the local offices of the Court and
other necessary information may be obtained on request to the Administrator of this Court at
Ottawa (telephone 613-996-6795) or at any local office.
IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN
YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.
Date: June 16, 2014
Issued by:
Address of local office:
Federal Court of Appeal
180 Queen Street West
Suite 200
Toronto, Ontario
M5V 3L6
TO: CANADIAN ASSOCIATION OF BROADCASTERS
45 O'Connor Street, Suite 700
Ottawa, Ontario KlR 1A4
AND TO: PANDORA MEDIA INC.
2101 Webster Street, #1650
Oakland, California 94612
United States of America
AND TO: CANADIAN BROADCASTING CORPORATION
181 Queen Street
Ottawa, Ontario KlP 5Cl
AND TO: ROGERS COMMUNICATIONS INC.
lOth Floor, 333 Bloor Street East
Toronto, Ontario M4W 109
AND TO: SHAW COMMUNICATIONS INC.
900-630 3 Ave SW,
Calgary, Alberta T2P 4L4
AND TO: QUEBECOR MEDIA INC.
612 St-Jacques Street, 17
1
h Floor
Montreal, Quebec H3C 4M8
MAGGIELAU
REGISTRY OffiCER
AGENT DU CV .. Efff.
AND TO: ALLIANCE DES RADIOS COMMUNAUTAIRES DU CANADA
325 Dalhousie Street
Ottawa, Ontario KlN 702
AND TO: ASSOCIATION DES RADIODIFFUSEURS COMMUNAUTAIRES DU
QUEBEC
201 2 Ste Catherine Est
Montreal, Quebec H2X 1 L2
AND TO: NATIONAL CAMPUS AND COMMUNITY RADIO ASSOCIATION
325 Dalhousie Street, Suite 230
AND TO:
Ottawa, Ontario KlN 7G2
COPYRIGHT BOARD OF CANADA
56 Sparks Street, Suite 800
Ottawa, Ontario KlA OC9
APPLICATION
1. This is an application for judicial review of the decision of the Copyright Board of
Canada (the "Board") dated May 16, 2014 (the "Decision"), certifying Re:Sound's statements of
proposed royalties for the communication to the public by telecommunication, by way of
simulcasting, non-interactive webcasting and semi-interactive webcasting, of published sound
recordings embodying musical works and performers' performances of such works for the years
2009 to 2012 (the "Proposed Tariffs") as Re:Sound Tariff 8 (Non-Interactive and Semi-
Interactive Webcasts, 2009-2012) (the "Certified Tariff').
THE APPLICANT MAKES APPLICATION FOR:
(a) A declaration that the Board exceeded its jurisdiction and erred in fact and law in
issuing the Decision and in certifying and setting the Certified Tariff;
(b) An order quashing the Decision and the Certified Tariff;
(c) An order remitting this matter to the Board to re-determine the Proposed Tariffs;
(d) Costs of this Application; and
(e) Such further and other relief as this Honourable Court may permit.
THE GROUNDS FOR THE APPLICATION ARE:
Background
2. The Applicant, Re:Sound, is the not-for-profit collective society authorized under the
Copyright Act, RS.C. 1985, c. C-42, as amended (the "Act"), to represent the rights of
performers and makers of sound recordings to be paid equitable remuneration for the public
performance and the communication to the public by telecommunication of published sound
recordings of musical works under section 19(1) of the Act.
3. The Respondent, Canadian Association of Broadcasters ("CAB") is an association of
Canada's private broadcasters, including commercial radio stations.
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4. The Respondent, Pandora Media Inc., currently operates a webcasting service in the
United States, Australia and New Zealand.
5. The Respondent, Canadian Broadcasting Corporation ("CBC") IS Canada's national
public broadcaster.
6. The Respondents, Rogers Communications Inc., Shaw Communications Inc. and
Quebecor Media Inc. (collectively, the "Services"), operate broadcast distribution undertakings.
7. The Respondents, Alliance des Radios Communautaires du Canada, Association des
Radiodiffuseurs Communautaires du Quebec, and National Campus and Community Radio
Association (collectively, "NCRA") are a group of associations representing Canadian
community and campus radio stations.
8. On March 28, 2008, Re:Sound filed with the Board its proposed tariff for simulcasting
and non-interactive webcasting for the years 2009 to 2012 ("Tariff 8.A"). On March 31, 2010,
Re:Sound filed with the Board its proposed tariff for semi-interactive webcasting for the years
2011 to 2012 (''Tariff 8.B").
9. CAB, Pandora, CBC, the Services and NCRA (collectively, the "Objectors") filed
objections to either or both of the Proposed Tariffs.
10. The Board commenced its consideration of the Proposed Tariffs and on January 26, 2011
the examination of Tariff 8.A and Tariff 8.B was consolidated. On September 24, 2012, the
Board commenced its hearing concerning the Proposed Tariffs, which took place over ten days
and ended on November 6, 2012 with closing oral submissions.
The Decision
11. On May 16, 2014, the Board issued its Decision, in which it rejected the rates and
benchmarks proposed by Re:Sound, ignored the expert economic evidence before it, and adopted
its own methodology based on the royalties payable to the Society of Composers, Authors and
Music Publishers of Canada ("SOCAN") by commercial radio stations for their over-the-air
broadcasts pursuant to the Commercial Radio Tariff (SOCAN: 2008-2010; Re:Sound: 2008-
LEGAL_1:31033436.1
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2011; CSI: 2008-2012; AVLAISOPROQ: 2008-2011; Artist!: 2009-2011) certified on July 10,
2010 (the "Commercial Radio Tariff''). In the result, the Board set the royalties payable at a
small fraction of both Canadian market rates and international rate standards.
12. Further, the Board declined to certify royalties payable for simulcasts by commercial
radio stations, the CBC, pay audio services and satellite radio services.
The Board's Errors
13. The Board exceeded its jurisdiction and erred in fact and law in:
(a) Failing to apply the proper standard for determining what constitutes equitable
remuneration under the Act for the purposes of the Proposed Tariffs;
(b) Rejecting the market-place agreement evidence before it, ignoring the evidence of
Re:Sound's economic expert, and certifying royalties in complete isolation of
economic and market-place realities;
(c) Rejecting the evidence of royalties payable for the same activities in other
countries and certifying royalties payable in Canada in complete isolation of
international rate standards;
(d) Using a proxy for an entirely different use (the Commercial Radio Tariff, which
applies to over-the-air commercial radio broadcasts) to set royalties for
webcasting, despite the marketplace agreement evidence for the very activities
and rights covered by the Proposed Tariffs, the expert economic evidence, and the
evidence on international rate standards;
(e) Ignoring the evidence ofRe:Sound's industry expert witnesses as to the disruptive
and devastating effects that setting webcasting rates in isolation of market realities
will have on the Canadian webcasting market and music industry;
(f) Failing to certify royalties payable for simulcasting; and
LEGAL_1:31033436.1
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(g) Certifying royalties that are neither fair or equitable nor have a reasonable and
suitable or rational basis.
14. In so holding and in setting or so certifying the Certified Tariff, the Board:
(a) Acted without jurisdiction or acted beyond or in excess of its jurisdiction;
(b) Erred in law and acted in a way that was contrary to law;
(c) Based its decision on erroneous findings of fact or without regard to the evidence
before it; and
the Decision is void and ought to be set aside.
15. Re:Sound relies upon:
(a) Copyright Act, R.S.C., c. C-42, including Sections 19, 20, 67.1 and 68;
(b) Federal Courts Act, R.S.C. 1985, c. F-7, including Sections 18, 18.1 and 28;
(c) Federal Court Rules, including Rules 317 and 318; and
(d) Such further and other grounds as counsel may advise and this Honourable Court
may consider.
THIS APPLICATION WILL BE SUPPORTED BY THE FOLLOWING MATERIAL
16. The Decision of the Board dated May 16, 2014;
17. The Proposed Tariffs and the Certified Tariff;
18. Applicable portions of the record in the Board proceeding, including the applicable
portions of the transcripts;
LEGAL_l:31033436.1
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19. An affidavit, to be filed; and
20. Such further and other material as counsel may advise and as this Honourable Court may
permit.
Dated at Toronto, Ontario, this 16th day of June, 2014
LEGAL_IJI033436.1
0 LER, HOSKIN & HARCOURT LLP
0 King Street West
1 First Canadian Place
Suite 6100, P.O. Box 50
Toronto ON M5X 1B8
.Jol.,; C. Cntter
.. ; ; 862-5662
\416) 862-6666
j v .. ' tter@osler.com
Solicitors for the Applicant,
', . ..,ound